Roger Ailes has been officially ousted from his longtime role as CEO of Fox after former Fox News host Gretchen Carlson filed a lawsuit against him alleging sexual harassment. But before he went, reports say that he led a campaign to get Fox employees to speak out on his behalf in order to intimidate any women who might come forward with their own stories of harassment.
According to an anonymous source briefed on the situation who spoke to the New York Times, Ailes had been discovered to be leading an effort to get high-profile hosts to speak out against those who are cooperating with Fox’s internal investigation of Carlson’s allegations. It had come to be viewed as a “loyalty test,” according to staff members, as to whether people would publicly support him.
One of those hosts was Megyn Kelly, who felt pressure to publicly support Ailes, according to a friend of hers, but resisted in order to show other women who may have their own harassment experiences to share with investigators that they should “feel more comfortable coming forward to tell the truth.” Kelly herself has reportedly told investigators that she received so many unwanted sexual advances from Ailes earlier in her career that she retained a lawyer in case her rejections endangered her job.
In light of that hush campaign, Ailes had been barred from the Fox building as of Wednesday.
Depending on how Ailes was going about his campaign to get public support, he may have brought even more legal trouble down on himself and his former employer. “There is retaliation protection in place for complainants and witnesses and coworkers,” said Joanna L. Grossman, a law professor at Hofstra University. “But whether those protections are triggered here is really a factual question about what he’s actually doing.”
The test is whether what he did would have deterred a person from coming forward or participating in the investigation or a lawsuit against him. “If he’s trying to intimidate people, make people uncomfortable, threatening adverse action, those are all things that could constitute retaliation,” Grossman explained. Employees could even potentially succeed in proving they were retaliated against independent of Carlson prevailing in her harassment claims.
But even if employees could prove they were retaliated against, Ailes himself wouldn’t be held responsible, as there generally is not individual liability, only employer liability. Ailes “doesn’t have much incentive to behave himself from a monetary perspective,” Grossman added.
The only way he would be made to pay up is if Carlson sought damages from him for inflicting emotional distress or harm to her career through his campaign to get people to speak out against her.
Ailes’s effort to rally the troops to his side may have already had a highly public effect. A huge number of on-air talent spoke out to defend him and call Carlson’s claims into question, including Sean Hannity, Greta Van Susteren, Neil Cavuto, Maria Bartiromo, and Geraldo Rivera. Many of them tried to throw doubt on Carlson’s claims of harassment by saying they hadn’t themselves been harassed or seen any such behavior from Ailes. Cavuto may have gone the furthest, calling Carlson’s allegations “sick” in an essay defending his boss and saying of harassment, “I’ve never seen it. I’ve never witnessed it. Not even hints of it.”
But no matter Cavuto’s personal experience, a number of women have reportedly come forward with stories similar to Carlson’s beyond Kelly. Carlson’s lawyer has said that at least ten women have called her with their own stories, while the internal investigation at Fox has reportedly collected statements from six women. A number of others have shared stories with the media both on the record and anonymously.
And while Kelly hasn’t spoken about the situation publicly, another female Fox employee spoke out against Ailes on Thursday. Kirsten Powers, who has been a contributor there for 11 years, said, “While I understand loyalty, I was disappointed that so many senior members of Fox’s on-air team rushed to defend Roger in a way that seemed to prejudge an investigation into sexual harassment. I would hope that in 2016 people would know that just because you weren’t harassed, or didn’t witness harassment by a certain man, that doesn’t mean it didn’t happen.”
This post has been updated with comment from a labor lawyer.