Five key questions in Roger Ailes sexual harassment lawsuit

Five key questions in Roger Ailes sexual harassment lawsuit
© Getty Images

The media world was rocked on Wednesday by Gretchen Carlson’s sexual harassment and wrongful termination lawsuit against Fox News CEO and Chairman Roger Ailes.

Ailes calls the allegations “false,” while the former news anchor says she was let go for “refusing Ailes’s sexual advances.”

ADVERTISEMENT
There's more than a hint of rampant speculation and schadenfreude in the air from those inside the media bubble who don't currently have Fox News listed at the top of their LinkedIn pages. 

Stepping outside the he-said, she-said aspect of the story, here are a few immediate questions about the Aisles-Carlson controversy that could be important in a legal battle. 

1). Was Carlson fired abruptly on June 23 following her afternoon show, "The Real Story with Gretchen Carlson?"

Not exactly. Her contract simply wasn't renewed. But according to a source close to the situation speaking exclusively to The Hill, Carlson was also offered a severance package, something not included in her legal team's complaint. 

The same source says Carlson indicated she needed time to think it over during a planned vacation starting that day and ending July 6. The two parties left the meeting relatively amicably.  

2.) Were Carlson's ratings solid and therefore not at issue? 

Context is everything when it comes to TV ratings.

Carlson's legal team says her ratings are up 33 percent year to date. However, that still places “The Real Story” — which was part of Megyn Kelly's old timeslot before she moved to primetime — as the lowest rated live program on Fox News. 

A 33 percent increase in any other year would be noteworthy. But in a presidential election year in which Donald TrumpDonald John TrumpRed states find there’s no free pass on Medicaid changes from Trump Trump meets with Moon in crucial moment for Korea summit The Memo: Trump flirts with constitutional crisis MORE's rambunctious rise to the Republican nomination has resulted in ratings gold across the board regardless of program or network, it’s not all that much. 

In the month of June, Carlson's program lost to CNN. 

Nannina Angioni, a labor and employment attorney and partner for Los Angeles-based law firm Kaedian LLP, said Ailes would surely use the ratings in court. 

“Ailes will argue that the low ratings were the legitimate, non-discriminatory reason for why Carlson's contract wasn't renewed. This is certainly a compelling argument in his playbook,” she said. 

3.) Will it hurt Carlson that the lawsuit was filed only after her contract wasn't renewed?  

"The timing of a complaint can matter atmospherically here and potentially impact the statute of limitations," says David Sanford, chairman of Sanford Heisler, a national firm that represents high-level executives and professionals in sexual harassment and gender litigation. 

"But, in all likelihood, her filing the complaint post-termination will not hurt her so long as the sexual harassment occurred in the recent past."

4.) When were the alleged harassing comments by Ailes made?

Carlson’s complaint suggests the alleged incidents occurred throughout Carlson's tenure at Fox dating back to 2005. Only one occurrence has a definitive date attached to it: Sept. 16, 2015. Carlson's book was released on June 14, 2015. 

5.) Did Carlson show any ill will towards Ailes in her book released just last year? 

Carlson did not. In fact, her praise of Aisles was effusive.

Here are two passages from her book, “Getting Real”:  

"Roger Ailes, the most accessible boss I’ve ever worked for, was behind the scenes. He saw FOX as a big family, and he cared about everything we did. Sometimes he’d show up in the control room or call during the show. He’d watch us at six before he left home and then listen in the car going to work. One day we had set up a batting cage outside the building and were doing a segment where we all tried to hit eighty-mile-an-hour pitches. Roger walked by on his way into the office and he stopped at the batting cage and took a crack at the ball. On live TV! Roger always has the capacity to surprise.

"I thought Ailes was brilliant. He was the first person in the television world to put opinion shows in prime time and it was working. He figured out that viewers were getting their news during the day from a variety of different formats — TV, newspapers, radio and increasingly the internet. So by the time people were home from work and settling in for the night, they already knew a lot of the news of the day. Now they wanted to be entertained and to hear analysis and opinion, even if they didn’t always agree with what was said. Ailes successfully developed a powerful nighttime lineup for viewers that set cable on its head — and is still dominating the airwaves today. In person, Roger was razor sharp and inscrutable and we seemed to have a real connection. He saw something in me that he liked — what he called my 'killer instinct.' He once noted that I would stop at nothing to do the job. He got me. Over the years I’ve come to value our time together. He encourages me to be myself, to relax and to not try so hard to look smart."

Jay Holland, an attorney for Maryland-based Joseph Greenwald & Laake, says the passages from Carlson’s book could be relevant in court.

“Ms. Carlson has chosen to sue only Ailes at this time under the New York City Human Rights Act. She has not sued her employer — Fox News,” Holland said. “So this case is very purposely personal against Roger Ailes, and so what they have publicly said about one another could be quite relevant. The timing of her comments in her book, compared to the timing of the alleged sexually offensive comments by Ailes would be very important.”

But David Lewis, a workplace harassment expert as president of Connecticut-based human resources consulting company Operations Inc., said Carlson’s team would argue the nice words were part of her job.

“Defense counsel will try and use this as a means to show she and Ailes had a good professional relationship,” says Lewis. “Her lawyers will simply say that she had to make such comments in an effort to gain favor with an overbearing boss.”

This story was updated at 11:53 a.m. July 11 to correct an attribution.