For nearly 200 years the U.S. Supreme Court was made up of men. Then came Sandra Day O’Connor.
In 2005, Gretchen Carlson began working for Fox News. She rose through the ranks to become host of her own show, “The Real Story.” But in June, Fox News declined to renew her contract. A few weeks later, Carlson sued Roger Ailes, alleging the Fox News chief fired her because she refused his sexual advances. Ailes denies the allegations but has since left the network. Since then, more than 20 women have come forward with stories about Ailes sexually harassing them on the job. And investigators are now looking at what other Fox News executives knew about Ailes’s behavior. Diane and guests discuss the case against Roger Ailes and the challenges of confronting sexual harassment in the workplace.
- Emma Coleman Jordan Professor of law, Georgetown University; co-author (with Anita Hill) of "Race, Gender, and Power in America: The Legacy of the Hill-Thomas Hearings"
- David Folkenflik Media correspondent, NPR; author of "Murdoch's World: The Last of the Old Media Empires"
- Gabriel Sherman National affairs editor, New York Magazine; author of "The Loudest Voice in the Room: How the Brilliant, Bombastic Roger Ailes Built Fox News--and Divided a Country"
- Erica Salmon Bryne Executive vice president, governance and compliance, The Ethisphere Institute
- Maureen Sherry Former managing director, Bear Stearns; author of the novel "Opening Belle"
Statement By Roger Ailes' Attorney
STATEMENT OF SUSAN ESTRICH, ATTORNEY FOR ROGER AILES (MADE IN A JULY 6 COURT FILING):
“Gretchen Carlson’s attorney has led a concerted smear campaign to prejudice the rights of Roger Ailes in this case. Her attempt to game the system so as to avoid the arbitration clause for her client’s baseless allegations is contrary to law and unsupported by the facts. Since July 6, 2016, the efforts of Ms. Carlson, her counsel, and her public relations team have spawned a myriad of stories about this case in the media, on-line and on television, including articles in The New York Times, The Wall Street Journal, The Washington Post, and The New York Daily News, among many others. In so doing, Ms. Carlson’s lead counsel has made statements going well beyond the ambit of what might be protected by the litigation privilege. Ms. Carlson and her attorneys even posed for pictures in a front-page story in The New York Times where they again blasted Mr. Ailes. There is no legitimate reason for Ms. Carlson’s strategy, particularly in light of the confidentiality provision in her Agreement. Rather, the goal of Ms. Carlson’s entire campaign is obvious: besmirch Mr. Ailes’s reputation so that he will pay her an exorbitant settlement.”
How Companies Protect Themselves In Sexual Harassment Cases
In 1991, when Emma Coleman Jordan helped represent Anita Hill in the Clarence Thomas Senate hearings, she thought she would be part of a "watershed moment" for sexual harassment in the workplace. But 25 years later, she's still having the same conversations.
MS. DIANE REHMThanks for joining us. I’m Diane Rehm. Last month, former Fox News host Gretchen Carlson sued Rogers Ailes, saying her former boss sexually harassed her for years. Since then, more than 20 women have come forward to say they were sexually harassed by Ailes, including current host, Megyn Kelly. Here to talk about the latest developments in the Roger Ailes case and the challenges facing victims of sexual harassment in the workplace, Emma Coleman Jordan of Georgetown University.
MS. DIANE REHMFrom New York City, David Folkenflik of NPR and Gabriel Sherman of New York Magazine. And from a studio in Denver, Colorado, business ethics expert Erica Salmon Byrne. We do invite you to be part of the program. Give us a call at 800-433-8850. Send us an email to email@example.com. Follow us on Facebook or Twitter. And thank you all for joining us today.
MR. DAVID FOLKENFLIKThank you.
MS. ERICA SALMON BYRNEThank you.
MS. EMMA COLEMAN JORDANThank you.
MR. GABRIEL SHERMANGreat to join you.
REHMAnd to you, David Folkenflik, remind us what happened and when this young woman, Gretchen Carlson's contract was not renewed by Fox.
FOLKENFLIKSo Gretchen Carlson has been a familiar figure on Fox News for years, for over a decade. She was, for many years, the co-host of their popular morning show, "Fox & Friends," a bright, peppy and in some ways political vicious show that's been a mainstay amongst Fox loyalists. And then, she was segued out a few years ago to a solo show, early afternoon show and her contract was not picked up in June and she went away and we didn't really know anything about it until she filed a suit in a state court in New Jersey in early July in which she alleged that she had been demoted several years ago because she had complained about sexism on the set of "Fox & Friends," particularly from her co-host Steve Doocy.
FOLKENFLIKBut this lawsuit (technical) against Doocy and not against Fox News as a network. It was filed against Roger Ailes as an individual and here's why. He said that -- or she said that he turned on her when she made these allegations of sexism on the set and that he increasingly ramped up his own sexist and sexually charged remarks and banter to explicitly make sexual advances upon her and, in fact, to say, I believe that September, that their relationship would have gone better if they had had a sexual relationship and it would've made things better for him and it would've made things better for her.
FOLKENFLIKAnd she seemed, by her account, astounded by this and over time, she decided to take action and file suit, which she did so early this July and it really has left open a extraordinary floodgate and a serious of ramifications that we've watched unfold now in public.
REHMIncluding additional women saying that they, too, were harassed by Roger Ailes.
FOLKENFLIKThat's right. I mean, you've had people come forward, including -- Megyn Kelly has not said so publically, but thanks to one of our guests here, Gabriel Sherman, we've learned about a number of these developments. But she is not the only one. Women have come forward from -- spanning back decades. I interviewed, as well as Gabe, a woman named Kelly Boyd who described going through this in, I believe, 1989 when she was a young Republican operative and he seemingly offered her professional counsel that very quickly turned to an explicit sexual advance of I'll make your career flourish if you give me sexual favors.
FOLKENFLIKAnd it seemed as though the pattern, again and again, echoed throughout all these narratives by these women. It's very hard to dismiss.
REHMGabriel Sherman, Carlson is only suing Robert Ailes, but she also named Fox News co-workers who she says harassed her as well. David mentioned Steve Doocy. What do we know?
SHERMANWell, Steve Doocy, as David pointed out, was her co-host for many years and he still is the co-host of the "Fox & Friends" morning show. It's important to note that Steve Doocy is one of the ultimate Roger Ailes loyalists. As I've reported multiple times, Steve Doocy will take direct dictation from Roger Ailes and repeat talking points on the air to inject his political point of view into the program. So by bringing Doocy in this, really, Gretchen Carlson is showing how Roger Ailes created a culture, both a political culture, but also a culture towards women that people who were -- men who were promoted to very high level of the network sort of understood that this culture was acceptable and took part in it.
REHMAnd how far back does that culture go? Give us some of Roger Ailes' history.
SHERMANUm-hum. Well, I wrote a biography in 2014 of Roger Ailes and really his whole life traces the arc of the growth of the television industry. He got his start in the early 1960s on the set of "The Mike Douglas Show," a very popular daytime talk show as a young producer and he very quickly rose through the ranks to become the executive producer at the age of 26 or 27 years old. He, then, had the chance to meet Richard Nixon on the set and talked his way into a job as Richard Nixon's chief television advisor and he quit "The Mike Douglas Show" to travel on the campaign trail in 1968, coaching Richard Nixon on how to appear on television.
SHERMANAnd from really that moment on, Roger Ailes has gone back and forth between the worlds of Republican politics and national television. And with Fox News, which he started in 1996, it really brought those two worlds together and he created a megaphone for Republican politics that masqueraded as a news channel.
REHMAnd to you, Emma Coleman Jordan, what's your reaction to what Gretchen Carlson has said, the suit she's filed and the stories you're hearing from other women?
JORDANWell, there are a couple of things that are worth noting. One, she describes a boss who used his power against her, to put her in the position of having to choose whether she wanted to pursue her career, where she had devoted a lot of time to it, she's an honors graduate from Stanford, she's a person of great intelligence as well as beauty, and she was put in the position of having to choose her job or having sex with him. And every effort she made to dissuade of that was rebuffed. And the description here, especially with Mr. Doocy, suggests that the workplace ecosystem became infected with the attitude that using sexual harassment as another tool of power in the accepted and expected from men.
REHMAnd in terms of the kind of sexual harassment that Ms. Carlson is alleging, how hard is that to prove?
JORDANWell, the proof of it will come from people that she told contemporaneously at the time these incidents happened. So it is corroboration for her statements if she has others that she told about this. Now, of course, the 20 women who have come forward to describe sexual harassment by Roger Ailes at Fox News helps a lot as well.
JORDANAnd so, as we know from the Cosby case, that when you have a pattern of abusive behavior, you have a cohort of victims. And when they all come forward together, that is certainly corroborating and reinforcing evidence that's very important.
REHMBut does it surprise you that a business, a corporation as large as Fox News would allow this to continue into the year in which we are, in the 21st century?
JORDANNo. It doesn't surprise me, especially because Roger Ailes, as we all know, and I'd love to hear from Mr. Sherman, since he's done this biography recently, but Roger Ailes is a larger than life personality. He is a man of strong opinions. He's very -- can be very bellicose, belligerent and dominating and exercising his power in a lot of different ways and this happens to be one.
REHMGabriel, do you want to add to that?
SHERMANYeah, you know, I -- what I found so striking when Gretchen Carlson filed her lawsuit, sadly, it wasn't a surprise to me. In my book, I documented multiple episodes of similar behavior in which he propositioned young, female employees, basically trading job promotions for sex. So I knew that this pattern of behavior existed. And we see that now at every stage of his career. You know, I've documented cases of sexual harassment allegations against him from the 1960s until the, you know, the 2000s. So this is a 50-year pattern of behavior.
SHERMANAnd so, clearly, you know, this norm, this behavior that he thought was normative behavior continued throughout his career and he used it to an advantage and as he amassed more power, he insulated himself from being called out on this behavior. I just want to point out, briefly, you know, the culture of Fox News is such that he promoted people who were his loyalists and to all of the positions that in a more traditional company would be checks on his power. So his former secretary became the number two person in human resources.
SHERMANHis hand-picked lawyer, Diane Brandy, signed off on these sexual harassment settlements and so he was able to do away with independent checks that would prevent him from being caught.
REHMGabriel Sherman, he's national affairs editor for New York magazine and author of "The Loudest Voice in the Room: How the Brilliant, Bombastic Roger Ailes Built Fox News and Divided a Country." Stay with us.
REHMAnd if you've just joined us, we're talking about former Fox News host Gretchen Carlson, her allegations that Roger Ailes sexually harassed her and then did not renew her contract because she would not adhere to his sexual advances. And I want to come back to you briefly, Gabriel Sherman, because you talked about a pattern in Roger Ailes' career going all the way back to the '60s. What kind of confirmation did you get from people that he had in fact, going all the way back, done that same kind of sexual harassment?
SHERMANYeah, so by this point I've interviewed more than 20 women who have had these experiences, who say they've had these experiences with Roger Ailes going back to the 1960s, and these are women who spoke on the record with their full names attached who all recount that he was very explicit and forward about demanding sexual favors in exchange for job opportunities. And what I found so striking about these stories was these are women who live all over the country, they've never met each other, and yet there was a similarity that they were all somewhat different, but there was enough similarity between them that you could really see that this was a pattern of behavior that he practiced.
SHERMANAnd so I find their stories to be incredibly credible, and so I believe them.
REHMAnd to you, Erica Salmon Bryne, there's kind of a quid pro quo here that people are talking about. How common do you see that in today's workplaces?
BYRNEIt's an interesting question, Diane. The quid -- it is -- it literally is called quid pro quo harassment. If you look at the policies and the kind of training that is at this point really table stakes for a good compliance and ethics program, that's exactly how they refer to it, you know, do this for me, and I will do this for you. And it's less the common kind of harassment that we see these days. You know, we're seeing a lot more conversation around hostile work environment, creating a work environment in which I feel unwelcome due to either my sexual orientation, my gender.
BYRNEAnd all of those things are, you know, starting -- that kind of conversation is being bolstered right now by the considerable research that's been done to show that the more diverse your management team is, the better your company does, generally speaking. And so this to me, you know, the thing that I find so fascinating about this case is it's such a throwback, right. I mean, in a lot of ways, if you take the faces out of all of this, and you just tell the story, it's like a bad training video, you know, the ones that we all have to sit through.
BYRNEAnd it is -- it's -- Gabriel touched on this a little bit, but it is such a culture question, and that's the piece that I find so interesting.
BYRNEIn the business and ethics space, we call it tone to the top, and...
REHMDoes it surprise you then that a business as big and as important as Fox News would allow this kind of risky behavior to go on? It must have gone all the way to the top.
BYRNEYeah, it is, I mean, it's tone at the top, and, you know, and as I said, the policy and the training piece is really table stakes at this point for most companies. The question is how do you get ahead at this organization. The -- a company has four levers that they can pull on to influence culture inside the company, and those are who you fire, who you hire, who you praise and who you promote. And Roger Ailes very clearly is, as Mr. Sherman indicated, you know, he praised and promoted those who were loyal to him and did what it was he wanted to do, and he was able to do that.
BYRNEThat's going to be to me the fascinating thing going forward is what happens to the succession at Fox News and, more broadly, what happens to the succession at 21st Century Fox because, you know, you're going to see a shift with Ailes' departure, and I think the really telling piece is who's going to wind up in that head spot. That's going to be the piece that indicates where Fox News goes from here.
REHMDavid Folkenflik, I'd be interested in your reaction both about where Fox is going to go but first about the timing of Ailes' resignation, what he got when he left.
FOLKENFLIKIt was an astonishing going-away gift, you know, estimated -- it's certainly tens of millions of dollars, probably around $40 million, arranged by Rupert Murdoch, who's head of this entire media empire and of course was really the funder and creator of Fox News with Ailes two decades ago and his sons to whom he's granted a lot more authority and responsibility in the last few years, Lachlan and James Murdoch, who are helping to run, really, 21st Century Fox, the parent company, day to day.
FOLKENFLIKYou know, James Murdoch is -- sees himself as a more modern figure, would like to present a 21st-century face on 21st Century Fox, and, you know, I guess taking an adage from Rahm Emanuel, never fail to take advantage of a good crisis, I think is the transitional period, where his father is leading Fox News, and you're seeing essentially a kind of gentler status quo, but I think you may see new changes under a new leader once that person is named.
FOLKENFLIKWell, you could see a little bit -- I don't mean to say it'll look like a straight-down-the middle cable network because this is such a profitable enterprise. The whole problem for the Murdoch brothers, who fought and wrangled with Ailes over the years in just getting him out of there, is that he was generating, you know, over a billion dollars a year in profit through this formula that had worked so well for them. So they wouldn't want to lose the conservatism, but I think they want to smooth out the rougher edges, get rid of some of the paranoia and conspiracy that you see on the air and some things like that.
REHMSo are you saying that Rupert Murdoch and his sons were unhappy with Ailes before Gretchen Carlson spoke out? And why?
FOLKENFLIKI would say that they didn't sit in exactly the same position. I think Rupert kind of liked the figurative finger and poke in the eye that Roger Ailes gave to what he saw as the liberal establishment and the rest of the liberal press on more or less a daily basis or an hourly basis over at Fox News, and he really enjoyed those exceptional profits, so important an engine driving 21st Century Fox and his combined media enterprise for the last really 15, 16 years.
FOLKENFLIKSo I think that both of those things meant that Murdoch feels a fair degree of loyalty. More than a decade ago, Roger Ailes really made life difficult when Lachlan Murdoch, Rupert Murdoch's elder son, was really starting to rise as a younger executive at what was then called the combined family empire, and Combined Family Empire ultimately decamped for Australia. He just threw his hands up and said forget it, I don't want this kind of corporate intrigue. And Ailes, I think, enjoyed that very much. So Lachlan Murdoch really has no fondness for Ailes, and James Murdoch feels somewhat embarrassed by the product that he has watched in recent years.
FOLKENFLIKHe is more of a centrist than his father and certainly more than Roger Ailes, but also the edge to it, the viciousness, I think, the political conspiracy theories makes him embarrassed and wince a little bit. You know, he's involved with his wife in environmental issues, his wife has worked for the Clinton Foundation and other -- the Environmental Defense Fund. You know, they do not occupy the same place on the spectrum that Roger Ailes does.
REHMOkay, I want to come back to the question of sexual harassment. Gretchen Carlson, Emma, worked at Fox for years. How hard is it for a woman experiencing that kind of sexual harassment to stand up and say I won't take this anymore without losing her job?
JORDANThat's the key question. Gretchen Carlson worked there a long time. She was subject to this harassment over many years, and it was when she was fired, or her contract wasn't renewed, that she filed the lawsuit, although her lawyer says they were considering filing it before she was terminated. So yeah, it's very hard.
JORDANWe have another person who stepped forward day. The Daily Beast has a story from Shelley Ross, who is a well-known executive in the television industry who says Roger Ailes sexually harassed her and that the people at NBC were alerted to the harassment. This is back in the '80s. So she said that what she did was decline that particular job and give her lawyers the heads-up about what was happening.
JORDANAnd they intervened, and Roger Ailes backed down with her, and she was able to go on and get other jobs but only because three law firm partners who were very influential and powerful read him the riot act.
JORDANAnd she was able to keep her job. But this is in today's Daily Beast.
REHMErica Salmon Bryne, from your perspective, Donald Trump has said that women who experience this kind of harassment should simply walk away from their jobs. How did you react to that?
BYRNEI, you know, I thought that statement was a remarkable little piece of victim-blaming, right, that basically, you know, any woman who allows herself to be subjected to this kind of behavior is somehow, you know, simply not strong enough to do anything about it and really, you know, someone who has a spine would just say, you know, to heck with all of you and walk away.
BYRNEAnd, you know, the to heck with all of you is a true luxury, right. I mean, the vast majority of people who find themselves in these kinds of situations, you know, they either have, as Gretchen Carlson did, devoted a tremendous amount of time to building their career, and they have to sort of face the dilemma of walking away from that or trying to somehow navigate the situation they find themselves in.
BYRNEOr, you know, in much more simpler, prosaic terms, if you look at the EEOC cases that have been filed over the years, you know, these are people who are looking to pay their mortgage. These are people who are looking to, you know, make their car payment, who don't have the option of simply walking away from someone who is engaging in this kind of behavior because they need the money that is coming in from the job that they have to support their family.
REHMOf course, yeah.
BYRNESo, you know, it's -- it's a -- the idea that this kind of thing only happens to someone who is weak, who is unintelligent, who doesn't have a spine, you know, it was -- it was -- as I said, it was a stunning piece of victim-blaming.
REHMAll right, and joining us now from New York City is Maureen Sherry. He's an author, former managing director at Bear Stearns. Welcome, Maureen.
MS. MAUREEN SHERRYOh thanks, Diane.
REHMI know you spent years working in the financial industry. How much sexual harassment did you experience as a trader and then an executive on Wall Street?
SHERRYYou know, I think much like a newsroom, where you have these very open environment, a trading floor, a newsroom, where there's, you know, kind of an overt familiarity, I hear a lot now about, say, tech startups, et cetera, where there are no real walls or true privacy that sort of the bro-talk culture or the, you know, kind of like we're all some sort of team and bad behavior, almost like a fraternity, can take over, especially where women are so outnumbered by men.
SHERRYMe personally, I wanted to write about it in a fictional form because I started to write it as nonfiction and realized that, first of all, it's just loaded with litigious aspects but also by interviewing women on Wall Street, I found when they were able to tell their stories and seemed kind of liberated to be able to talk about the environment they worked in. And I guess I would say that from the time I was on Wall Street to present day, some of this behavior has gone to a more covert position, but it's still very, very much alive.
REHMAnd you're listening to the Diane Rehm Show. And Maureen, you wrote about your experiences in a New York Times op-ed that actually went viral. Tell us about that piece and the reaction you got.
SHERRYYes, so in the piece I brought up something that we're also seeing in the Roger Ailes case, which is using arbitration in employment, and that basically says that if you have an issue with your employer that you will settle -- you will settle it in-house, that we don't read about this stuff in the newspaper. I also -- and because I think that is something that allows this sort of behavior to go on and on, especially if you have a powerful person who is being accused, the feeling is that oh, that person brings in a lot of profitability to that firm, we should all look the other way, let's have this woman sign a nondisclosure, let's write her a check, and this -- you know, then that's the end of the story.
SHERRYSo when I wrote this op-ed piece, yes, that had a lot to do -- I used some examples that were, you know, particularly egregious and also described why I feel Wall Street loses some very, very talented women who, I think as you said on the Donald Trump situation, who did decide to just leave their job because they frankly couldn't take it anymore.
REHMGive me some of the examples you used in that piece.
SHERRYYeah, yeah, in the piece I used, for instance there was -- at the time I had come back from maternity leave, I was nursing, I had expressed some milk that I kept in a small refrigerator. Some traders were, you know, daring one to take a shot of breast milk, which he did. And it's that sort of environment where, you know, you're seen -- it wasn't meant to hurt me personally. I think behavior like that was meant to, you know, just to get a laugh from the other men and much different from what we're talking about in the Ailes case, but again this sort of fraternal behavior.
SHERRYWhere only 10 percent of the women on the trading floor are -- people on the trading floor are women.
REHMAnd what happened on your first day on Wall Street, when you opened up a pizza?
SHERRYYes, so I was offered lunch. Someone came over and unveiled. lifted the top of a pizza box for me, and instead of where there, for instance, would be, say, pepperoni, there were unwrapped condoms. So -- but this is -- one thing I'm happy about is by putting examples like this out there, many other women have, you know, emailed me or gone to the press with frankly more egregious stories than this.
SHERRYAnd so I think just talking about it, you know, unlike the -- the Roger Ailes case, it's amazing to me to hear this investigative reporter talk about 20 -- he's had 20 years of interviews from women where women sort of just remained quiet. And so I think by just -- without, you know, pointing fingers at particular people and just describing what the environment is like to a greater public that that is one step toward making it better.
REHMWell let's hope that this entire proceeding is going to help women feel more courageous about standing up without being threatened to have to leave their job. Maureen Sherry, she's an author and former managing director at Bear Stearns. Thank you so much for joining us.
REHMAnd we're going to take a short break here. When we come back, we'll take your calls, 800-433-8850. Send us your email to firstname.lastname@example.org. Follow us on Facebook or Twitter.
REHMAnd welcome back. We have a tweet from Joanne, who says, still so difficult to prove. This has been rampant in broadcasting for decades. She says, I speak from experience. Emma, there is this non-disclosure agreement that these women and men have to sign. And that's kind of the core of it, isn't it?
JORDANWell, there are three legal tools that are used to defend against sexual harassment lawsuits and to keep the information under seal. To keep it out of the public domain. The arbitration clause is one, so it's not in a public court. It's in an environment where it's negotiated in a private setting. The confidentiality clauses and then the settlements that are sealed. So you give the person a certain amount of money and you say, you go away and keep confidentiality. It all goes away.
JORDANSo those keep those facts from being known and widespread. I'd just like to mention we were talking about the news industry, but a recent study identified -- this is in January of this year, that 60 percent of the women in Silicon Valley report that they have been the target of sexual harassment. 90 percent of them say they've witnessed sexist behavior at the company, off sites, or in industry conferences.
REHMAnd the other thing you mentioned to me during the break is that this whole confidentiality clause really applied to the pedophilia scandal within the Roman Catholic Church priesthood.
JORDANYes. It's a tool. If you've seen the movie, "Spotlight," it does an excellent job of portraying how the lawyer was put in a position of keeping children who had been abused from getting any remedy or satisfaction because he was putting the confidentiality clauses in any settlement. And therefore, none of this information could be circulated.
FOLKENFLIKWell, I just think it's important. I mean, you've heard these people who are so learned in the ways in which sexual harassment plays out in the corporate workplace. And we've heard about the finance industries as well. It's important to talk about the culture of Fox News, particularly as well. I mean, it's well known and we've reported on the nature in which it is operated in some ways like a political entity that is ideological and partisan, to be sure, in much of its programming.
FOLKENFLIKBut also, with the instincts of a political campaign. But its culture, also, plays out in the ways in which it holds certain stories in the public view and pushes them. Punitively, if you look at issues like Benghazi, you know, sort of out ahead of the facts, or beyond the facts even, as consistently shown. Even if there is plenty to criticize the State Department under Secretary Clinton in that regard. If you look at issues -- just look at the ways in which the airwaves are used to advance particular interests that serve the station itself.
FOLKENFLIKAnd serve Ailes' particular inclinations. Think about what happened to NPR when it let go Juan Williams. Whatever you think about what happened at NPR at that time, the reaction of Fox News, day after day, show after show to beat up on NPR and for Ailes himself to call its leaders Nazis, simply because it parted ways with a commentator who periodically appeared on its airwaves, seems to me to demonstrate what they're willing to do. If you think back, I disclosed a few years ago, Laurie Dhue, who has now come forward through her lawyer.
FOLKENFLIKTo say that she has something to tell, although it looks as though she will reserve what occurred between her and Roger Ailes for a book that she's writing. Nonetheless, when Laurie Dhue complained, some years back, when she was an anchor at Fox News, about the amount of publicity she was having, people working for Fox News' publicity department decided to teach a lesson. Not only to her, but to other anchors who might weigh in. And so they released photographs to the Washington Post gossip column to show her being inebriated and drunk.
FOLKENFLIKWhile dancing at a black tie affair in Washington, D.C. And then giving quotes to her, to, excuse me, to the columnist, not by direct name, to say she had a very good time and was very spirited that night. Now, why is this important? It is embarrassing for Laurie Dhue, but also, secretly at that time, she was an alcoholic and they knew it. So they were hitting her at her most vulnerable point for the most minor of slights that she said she wasn't getting enough publicity.
FOLKENFLIKImagine what somebody who would be willing to call out Roger Ailes for his conduct, for his behavior towards women, might have expected to receive in return, either on the airwaves or off it.
REHMAnd by the way, we did invite Susan Estrich, the attorney for Roger Ailes to appear on this program. Through a statement released to us, she writes that in part, Gretchen Carlson's attorney has led a concerted smear campaign to prejudice the rights of Roger Ailes in this case. Her attempt to gain the system, so as to avoid the arbitration clause for her client's baseless allegations is contrary to law and unsupported by the facts. Since July 6, 2016, the efforts of Miss Carlson, her counsel and her PR team have spawned a myriad of stories about this case in the media.
REHMOnline, and on television, including articles in the New York Time, the Wall Street Journal, the Washington Post, the New York Daily News. In doing so, Miss Carlson's lead counsel has made statements going well beyond the ambit of might be protected by the litigation privilege. I'd be interested in your comments, Emma.
JORDANWell, it's amazing. Susan Estrich has been a leading feminist. Her book about her own rape was quite a sensation, quite precedent breaking when she wrote it. She was a leader in the Dukakis campaign, if not the campaign manager.
REHMSo, why do you think she took this case?
JORDANI couldn't begin to answer that question, but I will say that we see men who are -- the Cosby case, one of his lead lawyers is a black woman. So, sometimes this effort to make cognitive dissonance by using a lawyer whose identity and previous affiliations are at odds with the allegations. And it's a way of getting co-signature that if this feminist says, I will defend you, then I can't be all bad. And frankly, I must say, I know Susan, I'm disappointed. But she's a lawyer and every person who's been accused is entitled to a defense.
JORDANBut the arbitration clause is now the target of the Consumer Financial Protection Ward's effort to get these clauses out of consumer contracts simply because they do shift the power so much to the corporate entity. And as a matter of consumer policy, the CFPB is in the process of reviewing getting these out of consumer contracts.
REHMEmma Coleman Jordan is Professor of Law at Georgetown University. And now, we're going to the phones to Fort Wayne, Indiana. Sandra, you're on the air.
SANDRAYes, thank you for taking my call.
SANDRAGood morning, everyone.
SANDRAYes, I had a short comment and then a question for anyone who would like to answer it. I'm 70-years old, I've worked outside the home in a Fortune 500 company for 40 years. And sexual harassment is alive and thriving in these businesses, unfortunately. But my question about the Fox issue. (unintelligible) starting to watch his show a couple of years ago, I thought -- I just thought there was something amiss in the way the women conducted themselves.
SANDRAThe way they dressed, their body language. And a few of them have left, and I often thought, they almost seemed intimidated by their co-hosts, like in the morning, I remember one show in particular. Am I the only one that sees this or is this just part of the environment?
REHMGabriel Sherman, do you want to respond to that?
SHERMANSo, I -- I guess the question is about the environment at Fox and the -- the, yes, I mean, I think the -- it's very clear that the women who are on air have a particular look. There's been a lot of reports about women who are told to wear short skirts by producers on air. They have to show their bare legs while men get to wear suits and ties. I mean, there's a double standard, in terms of the wardrobe. So I think yes, it's actually -- the product on the screen is reflective of the way Ailes views and treats women behind the scenes in the workplace.
REHMAll right. Let's go to Molly in Detroit, Michigan. You're on the air.
MOLLYI listen to your show every day. It's really an honor to talk to you.
MOLLYSo, I wanted to hear my experience with a similar situation. I'm a civil engineer, and one of my first internships, my boss pretty much daily sexually harassed me. And I wanted to say something, but everyone I talked to, all my co-workers, said oh, he's just part on an old boys club. That's just how he is. He doesn't mean anything, saying something won't change anything. And I believed them. And I just wish I didn't believe them. I wish I had said something because moving on from that, every job I've had after that, that boys club isn't a thing. There's people who respect you and people who don't.
JORDANI think that's an excellent observation and you're really giving us a window into why women hesitate to come forward. Part of it is that their peers will encourage them to think that nothing's going to happen anyway. They will be told that if you go forward, what corroboration do you have? So, what you're saying is that this happened to you. You wish now that you'd gone forward. I want to just say that in 1991 when I helped to represent Anita Hill, I thought that was a watershed moment.
JORDANAnd that we were going to enter a new era in which powerful men would understand that even inappropriate comments in the workplace, unwanted sexual comments in the workplace, could be the subject of litigation. I thought we'd gotten beyond that, but to see in 2016, 90 percent of the women in Silicon Valley say they witness sexual -- sexist behavior in the workplace. 60 percent report being the target of unwanted sexual advances from a superior.
JORDANSo, from 1991 until 2016, it appears we really haven't moved very far. Because women are still afraid. Molly describes her feeling of being afraid, and that's a normal reaction.
BYRNEDiane, if I...
REHM...sure, Erica. Go right ahead.
BYRNEI was just going to say if I could jump in and build on that point. Both Emma and Molly have touched on, and David as well, the primary two reasons that people in the workplace don't speak up about a variety of different kinds of misconduct, right? Not just harassment, but a whole, sort of, host of corporate misbehavior. And the number one reason is fear of retaliation, right? If I speak up, something bad is going to happen to me. And the number two reason is exactly what Molly mentioned, which is nothing's going to happen, anyway, right?
BYRNEWhat -- why bother, why take the risk? Why stick your neck out? The company's not going to do anything about it, and so I think the only way we're going to see the kind of change that Emma talked about, expecting in '91 with the Anita Hill case, is companies coming forward and saying no, you know what, we will actually do something about this. And we are seeing the flip side of that -- the happy side of the coin is we are actually seeing companies do that and, you know, Molly found work environments where people do respect her and her skills and what she brings to the table.
BYRNESo, it's endemic upon the culture at the companies that we are all working in to commit themselves to doing something when somebody has the moral courage to step forward and say something.
REHMI certainly hope that that could be the case going forward. And you're listening to The Diane Rehm Show. So, David Folkenflik, going forward, how do you see the culture at Fox News changing? What do you see happening there? Do you believe that this allowance of sexual harassment, now that Roger Ailes is out, is really going to stop, and do you see the culture of broadcasting change as well?
FOLKENFLIKYou know, one hesitates to be perfectly predictive, because there have been moments in the not so distant past where people said, ah, Anita Hill. And now we've got it. And they've said ah, there's this other moment, Tailhook, in the Navy, and we've got it. And then, things didn't seem to totally change, so you want to be cautious and humble about making such predictions. I think that you're not going to see a ton of change through the election at Fox News in terms of the leadership of Fox News.
FOLKENFLIKI do think that they are trying to send a very different corporate message, that the messaging is being handled and this is actually pretty important. From 21st Century Fox and not Fox News, which has been able to operate because of its profits and because of the willfulness of Roger Ailes at its top with an enormous degree of autonomy. I think Fox -- 21st Century Fox, trying to say it in the message, we are a modern American corporation. We believe in these values. It's important to get it right and we will do so.
FOLKENFLIKI do think it is very hard to see that message being consistently received, if you continue to have folks like Bill Shine, long time head of programming, which really means the opinion tail that wags that journalistic dog over at Fox News. He's helping Rupert Murdoch, in the interim, to lead Fox News. Dianne Brandi, who is the General Council, who has said that when she took allegations in 2011, from a longtime booker and sort of mid-level executive at Fox News, that Roger Ailes had sexually harassed her for essentially two decades.
FOLKENFLIKYou know, the General Council, Dianne Brandi said that Roger Ailes denied those allegations to her, but she signed off on a more than three million dollar settlement to have this person be silent about her allegations, which seemed to indicate a degree of concern or exposure for the corporation. Similarly, she had signed off on a payment to Rudi Bakhtiar, who had been a former CNN anchor and Fox News figure for harassment that she alleged had occurred at the hands of the man who became the Washington Bureau Chief.
FOLKENFLIKAnd she was involved very much in defending Bill O'Reilly from sexual harassment allegations that occurred more than a decade ago from a former producer of his program, "The O'Reilly Factor." If she stays on the job, Bill Shine stays on the job, other -- it's very hard to think the culture changes significantly, but this is their opportunity to prove that they can move differently with a different corporate leadership.
REHMIt sure is. It's a perfect opportunity. Do you think it could happen, Emma?
JORDANI think it can, but I think the structure of the organization and the people who have these lesser roles are equally important. It's not just the head, as we found with the Catholic Church. We could see it wasn't just the priests.
JORDANThe bishops, cardinals.
REHMExactly. All right, we'll have to leave it there. Emma Coleman Jordan, Professor of Law at Georgetown University, David Folkenflik, he's author of "Murdoch's World: The Last of the Old Media Empires." He's Media Correspondent for NPR. Gabriel Sherman is with New York Magazine. Erica Salmon Bryne is Vice President at the Ethisphere Institute. Thanks for listening. I'm Diane Rehm.