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How Strong Is Gretchen Carlson’s Case Against Roger Ailes At Fox? A Legal Expert Breaks It Down

CREDIT: RICHARD DREW/CHARLES SYKES/INVISION/AP
CREDIT: RICHARD DREW/CHARLES SYKES/INVISION/AP

In her lawsuit against Fox Chairman and CEO Roger Ailes, former Fox News host Gretchen Carlson makes some stomach-churning allegations about the nature and extent of sexual harassment and retaliation she says she experienced at Ailes’ hands.

She claims Ailes told her, point-blank, that she should “have had a sexual relationship a long time ago” with him and that, just nine months after the meeting in which he hit on her, Ailes “ended her career at Fox News.” When Carlson complained about a “pattern and practice of severe and pervasive sexual harassment” by her Fox & Friends co-host, Steve Doocy, Ailes allegedly “responded by calling Carlson a ‘man-hater’ and ‘killer’” who “needed to learn to ‘get along with the boys.’”

Other allegations include, but are not limited to: Ailes “commenting repeatedly about Carlson’s legs,” “making sexual advances by various means,” inviting her into his office where he could “ogle” her and “ask her to turn around so he could view her posterior.” Carlson’s efforts to report and end this behavior were met with a pay cut, reduced time on-air, lower-profile assignments, “shunning, ostracizing and humiliating her, both publicly and privately,” and, ultimately, refusing to renew her contract.

Shocking stuff? According to Joanna Grossman, professor of discrimination and gender law at SMU Dedman School of Law and author of Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace, nope, not really.

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“Every piece of data, every survey, every study we have, suggests this sort of behavior is still rampant,” she said. “In general, you should expect this is going on at high and low levels across the workforce.”

Decades of law aimed at preventing workplace sexual harassment have apparently accomplished little. An 18-month study conducted by the EEOC and published last month found that, in 2015, nearly one-third of the 90,000 charges of employment discrimination the Commission received that year included an allegation of workplace harassment. That harassment, the report goes on, is rarely reported: About three out of four individuals who experience harassment never tell a supervisor, manager, or even a union representative about it.

“Have we made progress? Yes, in some ways, but much more modest than people think,” Grossman said. “Courts have a kind of complacency, ‘We have laws!’ But they don’t want to ask questions of: What are these institutions like? Do they really offer a level playing field? If you look at what’s going on in actual cases, there’s no way you could conclude that we’re in some post-gender millennium.”

“When you go into work, the most salient thing about you, for most women, is that you’re a woman. It will define how much you get paid, it will define whether you get unwanted attention, it will define whether people abuse their power over you, it will define whether you rise to the ranks you deserve, it will define how you’re evaluated.” In offices the nation over, “the thing that matters most is your gender. And if you’re not white, throw that in too.”

‘It’s Not A Sex Comedy Show. It’s A News Show.’

The fact that Ailes is in a position of extraordinary power actually helps Carlson’s case, Grossman said. For one thing, “It’s just much more believable that she really was in a situation where she was being coerced or put in uncomfortable situations.”

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Part of proving actionable harassment is that the conduct has to be “unwelcome.” “The more powerful the person is, the harder it is for anyone in that environment to say, ‘Cut it out!’ if it’s a coworker with no power over you, it’s much easier to be like, ‘What is wrong with you? Stop touching me. Stop talking to me.’”

Anyone can understand why “it’s very hard to say to the CEO of a major news organization, ‘Don’t talk to me that way,’” Grossman said. “You would expect to experience retaliation for that. And that is in fact what [she says] happened when she did speak up.”

Fox News Host Sues Roger Ailes Over Sexual HarassmentEconomy by CREDIT: AP Photo/Richard Drew Gretchen Carlson, a longtime Fox News host, has filed a lawsuit against Fox…thinkprogress.orgEven if one can prove unlawful harassment occurred, Grossman went on, there’s “an entirely separate question” you have to answer: Is the employer liable for it?

If Carlson were alleging harassment by a coworker — essentially a peer — “then the employer is only liable if they knew or should have known what was going on and didn’t stop it,” Grossman said. “If they really didn’t know, it’s not their fault.”

But “if it’s a supervisor who did the harassing, and there is a tangible employment action,” for instance, the plaintiff was demoted and/or fired, as Carlson claims she was, “the employer is liable and there’s no defense.”

With Ailes, there’s the high possibility of “alter ego liability, which basically says, the harasser is the employer.” So those two questions — “was this harassment?” and “is the employer liable?” — don’t have to be separated. “It’s as if the institution itself behaved this way. So all you have to show is actionable harassment, and then liability is automatic with no defenses.” Given who Ailes is, “you could make a good case for that,” Grossman said. “Anything he did, the employer is liable for, because he’s the employer.”

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What Carlson describes in her lawsuit, Grossman said, makes a decent case both for hostile work environment and “tangible employment action. If she rejected his advances and got fired, that’s actionable.” And even if she can’t “show the causal connection between what he asked of her and her getting fired, she still has a pretty good case for [proving the workplace was a] hostile environment.”

Carlson paints a picture of “this highly sexualized environment targeted at her specifically, and there’s no reason for it. They’re not in an environment where that is the nature of the work,” Grossman said. “It’s not a sex comedy show; it’s a news show.”

Add in what Ailes allegedly said to Carlson about needing to “get along with the boys,” Grossman said, and “she has a third claim: sex-based harassment, which is sort of gender-hating harassment. Because it sounds like he really not only was sexualizing the environment but making it a place where women were made to feel uncomfortable, and that’s an independent type of claim she could pursue.”

Carlson’s case is “compelling,” Grossman said. “Does that mean she’ll win? It doesn’t.”

Why Going To Trial In These Cases, If You’re A Woman, Is ‘Like Going Through A Meat Grinder.’

The odds are not ever in Carlson’s favor: Exact stats are hard to come by, but Grossman puts the chances of a plaintiff winning a an employment discrimination case at about “five percent, which is lower than any other kind of civil case.”

Why so low? Part of the issue is proof — juries and judges saying, “it’s a he said, she said,” and determining that they can’t determine what happened. But another problem, Grossman said, is “fatigue of courts.” Judges see so many of these claims, she said, “and are more interested in getting rid of these cases than they are in seeing them go to trial.” And, as in all matters, there are weak cases filed; the presence of the weak hurts the strong. So these cases typically end in a settlement with confidentiality clauses; Grossman expects, “if [Carlson] has good evidence, that this case will settle.”

“Women who go to trial in these cases, it’s like going through a meat grinder,” Grossman said. “It’s a horrible experience. So it’s not that appealing. You want to vindicate your rights, but do you want to be tortured in the process if someone is offering you a settlement?” That said, the fact that Carlson is already a public figure might mean “she’d appreciate the opportunity for public vindication” and go to court after all.

Grossman couldn’t think of another workplace harassment case like this one, where both the accuser and the accused are already household names. (Anita Hill and Paula Jones were made famous by their allegations, not before.) Expect Ailes’ and Carlson’s respective reputations to “play into” the case: “Is she a well-liked public figure? Is she hated? Is she controversial? Is she perceived as a strong woman or as a sell-out?” Grossman asked. As for Ailes, “is he a respected guy? Is he controversial? Is he a known woman-hater?”

Gretchen Carlson Is Not AloneEconomy by CREDIT: Brian Ach/AP Images for The Hollywood Reporter On Wednesday, the media world learned of a lawsuit…thinkprogress.orgIn the day since Carlson filed her lawsuit, according to her attorney, “many women” have reached out to say they were also harassed by Ailes. “There are maybe around 10 women who’ve said, ‘I’ve been a victim, too.’” She later told New York Magazine that Ailes is “the Bill Cosby of media” and that her “office is being deluged with calls and website contacts from women. I don’t even have a count anymore… Women as young as 16 who said he demanded oral sex. Another said during an interview that he said, ‘Take off her bra.’ She was devastated.”

Ailes responded to the lawsuit with a statement calling Carlson’s allegations “false.” “This is a retaliatory suit for the network’s decision not to renew her contract,” he wrote, claiming her ratings were “disappointingly low.” “This defamatory lawsuit is not only offensive, it is wholly without merit and will be defended vigorously.”

Fox And The Hound

“You would expect it to be a little more complicated than if she was an MSNBC host,” Grossman said. Fox, after all, “is a network that has an image of hating equality and hating women, specifically.” (Though left-leaning institutions are certainly not immune from the kind of systemic, illegal misogyny Carlson describes.) Still, Grossman said, “it seems more believable that the culture of the place comes from the top. The person running it allows people on air to say these awful things. It’s just not a surprise [to hear] that person, also, happens to behave in ways that abuse power and discriminate against women.”

Were Carlson on a blue network instead of a red one she could be painted as “some crazy liberal feminist who hates men,” Grossman said. “But she works at Fox News! She has to be pretty comfortable around people who behave in kind of awful ways. So you might say, for this to be so bad that she complained about it, it must have been really bad. Because I’m sure that’s not a culture that supports objecting to marginalizing behavior.”

A supercut of all the sexist comments made to Carlson on-air is already making the rounds. In the two-minute clip, her male co-hosts comment repeatedly on how “beautiful” she looks, that she’s “really too hot,” and that for “bra stories, defer to the babe.”

The video, and others like it, make Carlson’s case unique. “That’s a kind of evidence you don’t have in most cases,” Grossman said, though depending on the point of view of a jury, the clips “could either really reinforce her narrative or [make it] look like she’s making something out of nothing.”