When former network anchor Gretchen Carlson filed an unusually public sexual harassment lawsuit against cable news titan Roger Ailes earlier this month, the complaint did not name her employer, Fox News Channel parent 21st Century Fox, as a defendant.
But the company is nonetheless faced with the thorny task of managing its response to what may be the most high-profile sexual harassment lawsuit in American life, since Paula Jones filed suit against President Bill Clinton in 1994.
While most sexual harassment cases are handled quietly behind closed doors, the highly public nature of Carlson’s suit pushes the media organization’s culture onto public display and invites scrutiny over how it responds to Ailes’s exit, which news reports say is being negotiated.
“This is not following a typical script,” said Debra Katz, a Washington lawyer who often represents plaintiffs in sexual harassment lawsuits. For one, the complaint alleges that Ailes’s actions came as part of his “individual capacity,” rather than any official one. Moreover, its public nature is unusual. “Most cases settle. This is such an anomaly,” she said.
The accusations have spurred a parade of the network’s employees to publicly defend their boss. Carlson’s suit accuses Ailes of pressuring her for sex and ultimately cutting her job when she resisted. Star anchor Megyn Kelly has since told investigators that she, too, endured unwanted advances from Ailes, New York magazine reported. Ailes has repeatedly denied the allegations.
Fox News did not respond to requests for comment, and 21st Century Fox would not comment further.
At least a dozen on-air personalities have shown support for Ailes, with several questioning Carlson’s credibility.
“She’s disgruntled she didn’t get her contract renewed, and the timing is very suspicious,” Fox host Greta Van Susteren said, according to the New York Times.
“This is something that is totally inconsistent with the man I’ve known probably longer than most people who work in that building,” Jeanine Pirro, a weekend host of Fox News who said she has known Ailes for 30 years, told the Times.
According to Breitbart News Network, Kimberly Guilfoyle, another Fox News anchor, said: “He’s a champion of women. Nothing inappropriate has ever transpired. I’ve talked to 30, at least, fellow female colleagues at Fox, and not one of them said anything inappropriate was ever said or transpired.”
Irving Schenkler, a clinical professor of management communication at New York University’s Stern School of Business, said many firms follow a standard protocol about who can speak to the media. Usually that’s someone in communications. Or, occasionally, a crisis public relations strategist. But 12 voices at once?
“It’s quite striking to see such a leaky corporate vessel in real time,” he said. “This is not an example of well-calibrated managerial response to a crisis type of situation.”
Gabriel Sherman, an Ailes biographer and contributing editor at New York magazine, said he wasn’t surprised by the “ferocious counter-response from Fox talent.” Fox News “is a cult of personality built around Ailes,” he said. “The best way to advance your career is to profess your loyalty to the leader.”
Employment lawyers say some of Fox News’s response has followed standard practice for dealing with a sexual harassment complaint, including bringing in an outside investigative firm to review the claims.
In the process, 21st Century Fox has waived nondisclosure agreements to allow former Fox employees who have stories of harassment to speak out about them, according to media reports. “You can’t conduct a good faith investigation” otherwise, Katz said.
And although it may be more common for lower-level employees to be put on administrative leave during such an investigation, most companies make a decision based on business reasons when it comes to powerful, high-ranking executives such as Ailes.
“There is a business calculation here: How indispensable is this executive to the business?” she said. “They’re going into full-scale panic mode if there’s not a succession plan” in place.
It’s also common for companies to defend the executive in question with statements of support, particularly early in the case.
In a statement, Fox News said: “The Company has seen the allegations against Mr. Ailes and Mr. Doocy. We take these matters seriously. While we have full confidence in Mr. Ailes and Mr. Doocy, who have served the company brilliantly for over two decades, we have commenced an internal review of the matter.”
Where companies do get in trouble is if they go beyond supporting the defendant and defame the person bringing the allegations. Katz said Fox’s statement “seemed pretty close to the typical defense but wouldn’t invite more claims against them.”
What could create problems, she said, is the number of Fox News employees who have come forward to support Ailes and raise questions about Carlson.
“Best practice is to say we’re not going to litigate this in the press — we’re going to undertake a robust investigation and take all appropriate legal measures,” Katz said. Although she said she thinks Fox mostly did that, other women coming forward on Ailes’s behalf can be “a bad thing for morale.”
The employees defending Ailes while essentially slamming Carlson also may serve as a force that keeps other Fox News women from reporting sexual harassment.
“They don’t want to be ostracized as Gretchen has,” said Brooke Van Dam, director of Georgetown University’s journalism program.
Whether Fox News played any role in approving the comments made by Ailes supporters or did anything to encourage people to speak out is unclear. And employment lawyers say companies typically can’t keep employees — especially those with the kind of platform TV anchors receive — from doing so. But they said it would be rare for employers to encourage them to do so.
“It would not be a best practice, by any means, before a company has the results of their investigation, to go out and encourage employees to speak publicly,” said Amy Bess, an employment lawyer in Washington with Vedder Price. “And frankly, it’s not relevant whether or not he’s been helpful to people in their career.”
One day, Katz said, people may look back on Carlson’s suit “and say she was brave.”
“Most people who suffer sexual harassment in the workplace suffer quietly, and when they get fired they tend to move on,” she said. “You can see from the women who spoke out many years later . . . they thought the better course was to lick their wounds and move on. That’s a far more common response than people filing suit and fighting back.”