Issues to Watch

SEXUAL HARASSMENT: THE LATEST SCANDAL IN A SOCIAL AND LEGAL ISSUE PERMEATING THE ENTERTAINMENT AND MEDIA INDUSTRIES


Sexual Harassment: The Latest Scandal in a Social and Legal Issue Permeating the Entertainment and Media Industries

Victoria Lucido*

The summer of 2016 has placed Fox News at the center of a negative publicity storm following a number of allegations that former chairman and CEO Roger Ailes sexually harassed numerous women working within the company.  See Stephen Battaglio, Roger Ailes Has Resigned from Fox News; Rupert Murdoch Will Be Acting Chairman, L.A. Times (July 21, 2016, 5:10 PM), http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-ailes-leaves-20160721-snap-story.html.  Former Fox News host Gretchen Carlson filed suit against Ailes on July 6, 2016, alleging sexual harassment and retaliation in the workplace.  Complaint, Carlson v. Ailes, No. 2:16-cv-04138-JLL-JAD, 2016 WL 3610107 (N.J. Super. Ct. Law Div. July 6, 2016).  Since filing the suit, “more than two dozen women have reportedly disclosed inappropriate conduct by Ailes, throughout his career, and by other male employees during his time at Fox.”  Jeannie Suk Gersen, The Case Against Fox News, New Yorker (Aug. 26, 2016), http://www.newyorker.com/news/news-desk/the-case-against-fox-news.

Allegations of this type and magnitude are not uncommon in the industry and have been brought against other big names including actor Bill Cosby and BBC star Jimmy Savile.  See Melissa Chan, Here Are All the Legal Cases Plaguing Bill Cosby, Time (Feb. 4, 2016), http://www.time.com/4207924/bill-cosby-lawsuits/; Terrence McCoy, How BBC Star Jimmy Savile Allegedly Got Away with Abusing 500 Children and Sex with Dead Bodies, Wash. Post (June 27, 2014), https://www.washingtonpost.com/news/morning-mix/wp/2014/06/27/how-bbc-star-jimmy-savile-got-away-with-allegedely-abusing-500-children-and-sex-with-dead-bodies/.  The potential legal implications for Fox may be a hot topic in the coming months as the country and the world waits to see if the pending cases against Ailes and Fox will be dismissed or settled.

The Carlson suit alleges numerous occasions on which Ailes made inappropriate sexual comments and advances on Carlson, which when she refused, resulted in retaliation that culminated in the termination of Carlson’s employment on June 23, 2016.  Complaint, Carlson, No. 2:16-cv-04138-JLL-JAD, 2016 WL 3610107 at ¶ 20-25.  Carlson is not the only employee to bring a suit based on sexual harassment and retaliation against Ailes this summer.  Political analyst Andrea Tantaros also alleges Ailes sexually harassed her, and that Fox objected to her new book and suspended her in retaliation after she attempted to report Ailes’s harassment.  See Complaint, Tantaros v. Fox News Network, LLC, No. 157054/2016, 2016 WL 4435146 (N.Y. Sup. Ct. Aug. 22, 2016).  The complaint filed by Tantaros states that “Fox News masquerades as defender of traditional family values, but behind the scenes, it operates like a sex-fueled, Playboy Mansion-like cult, steeped in intimidation, indecency, and misogyny.”  Complaint at 2, Tantaros, No. 157054/2016, 2016 WL 4435146 at ¶ 2.

A major difference between the two sexual harassment suits is the choice by Carlson not to sue Fox whereas Tantaros included Fox along with Ailes and several others.  See Complaint, Carlson, No. 2:16-cv-04138-JLL-JAD, 2016 WL 3610107; Complaint, Tantaros, No. 157054/2016, 2016 WL 4435146.  A reason for the difference proposed in Tantaros’s complaint as well as in an article by Harvard professor Jeannie Suk Gersen surrounds contract law and a specific provision in the employment contracts of the two women regarding confidential arbitration.  Complaint at 74, Tantaros, No. 157054/2016, 2016 WL 4435146 at ¶ 74; Gersen, supra.

The confidential arbitration clause brings the validity of both cases into question.  In the Carlson case, although the only defendant listed is Ailes, it is quite possible that Ailes will ask the court to dismiss the case since it “undermines a key goal of the clause: to maintain secrecy around such allegations.”  Gersen, supra.  It is alleged in the Tantaros complaint that “Fox News’s leak of information about the arbitration to Mr. Grove was a material breach of the arbitration provision, and therefore permits Tantaros to proceed in . . . Court as opposed to in an arbitration.”  Complaint at 74, Tantaros, No. 157054/2016., 2016 WL 4435146 at ¶ 74.  Whether or not the two courts decide to uphold the arbitration clauses and dismiss either case is left to be seen.  If one or both of the cases are not dismissed, the legal implications for Fox and Ailes may include vulnerability to further public legal disputes.

A further confidentiality-based legal concern surrounds Laurie Luhn and Rudi Bakhitar who both have confidential settlements with Fox but have come forward with stories of sexual harassment since Carlson filed her complaint in early July.  See Gersen, supra.  Luhn stated that “she provided sexual services to Ailes during her twenty years of employment, an arrangement she said was aided by his deputies,” and that “she was paid $3.15 million in a confidential settlement as she departed the company, in 2011.”  Id.  Bakhitar states that she reached a confidential settlement with Fox after “she was fired for complaining about sexual harassment”—a similar story to Carlson’s.  Id.  Both women are violating their settlement agreements by speaking out in the face of their non-disclosure agreements.  Gersen makes a point of the fact that this type of behavior—jeopardizing a settlement—is unusual.  Id.  By speaking out, both Luhn and Bakhitar are putting themselves at risk legally due to Fox’s ability to bring litigation against them in order to enforce their settlement agreements.  However, Fox is currently facing a public-relations nightmare due to the dozens of women who have come forward with similar allegations and may decide not to enforce the non-disclosure agreements.  Id.   As the pending cases against Ailes and Fox move forward and more women potentially speak out about their experiences, it will interesting to see whether Fox attempts to enforce the various confidentiality and non-disclosure agreements at play.  As Gersen points out, it may not be in Fox’s best interests to enforce its non-disclosure agreements due to the bad publicity with which it is already surrounded.  Id.

  It is quite possible, based on previous cases and similar situations, that Carlson and Tantaros will not be the last to come forward with allegations of sexual harassment or to bring lawsuits against Ailes and Fox.  Whether or not their cases are successful or are dismissed due to their confidentiality agreements may however have an effect on the willingness of others to come forward.  Id.  Despite the potential for both Carlson’s and Tantaros’s lawsuits to fail, the publicity and subsequent investigation of the company have the potential to move the company forward, causing a decrease in the frequency of such complaints and reform of Fox’s policies for addressing complaints of sexual harassment in the workplace.

*Victoria Lucido is a second-year law student at the University of Baltimore School of Law where she is a staff editor for Law Review. In the summer of 2016 she interned with Maryland Volunteer Lawyers for the Arts and studied abroad in Aberdeen Scotland. She currently works as the Clinic Coordinator for Maryland Volunteer Lawyers for the Arts.

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