In the past couple of weeks Fox News forced chairman and CEO Roger Ailes from the network in response to sexual harassment charges filed by Gretchen Carlson and echoed by many other female employees. But the lawsuit takes an unusual turn in that rather than naming her employer, the claim specifically names Ailes as the defendant.
The Carlson-Ailes case stands apart in a number of ways, and much of its difference likely has to do with the visibility of the players involved. The lawsuit does not name the network as a defendant – Ailes is accused of acting as part of his “individual capacity” rather than in his official role as head of the network - but it is still necessary for Fox to act in a way that shows sensitivity to its female employees, particularly as others have come forward both to support her claim and to defend Ailes. This in and of itself is very different from what happens in most cases, where it is rare for other employees to step forward either to support or deny allegations.
Looking at the way that Fox has responded, experts in the field say that they are behaving appropriately, bringing in an outside firm to investigate and review the claims in order to avoid any hint of bias for either side. It is particularly notable that even though the media company has nondisclosure agreements in place preventing people from speaking publicly, the network has waived those agreements in order to permit good faith investigations to proceed.
These now-waived nondisclosure agreements may in fact be one of the most notable aspects of the Ailes-Carlson case. Many believe that the iron clad nondisclosure and non-disparagement agreements that Fox had in place contributed to the hesitation of other victims – and that as they become more common, they may similarly quell complaints of future victims. Because Gretchen Carlson is highly compensated, the nondisclosure agreement that she signed had little sway on her when it came time to file a complaint and speak publicly.
But what happens to everyday workers whose families depend on their income and their employment? Many fear losing their jobs, and as a result they allow themselves to be victims of harassment and criminal activities. However, the Equal Employment Opportunity Commission has made it clear that while nondisclosure agreements may keep you from filing your own suit, they do not keep you from filing a suit through state or federal agencies. You also may be able to join a suit filed by another person. Perhaps most importantly of all, even an employer that moves for summary judgment because of an existing non-disclosure agreement may find themselves on the losing side of that argument, as judges can rule that the case is essentially a whistleblower case, or that the activities are illegal and therefore not protected, or that the terms of the agreement are overly broad.
If you have been the victim of sexual discrimination or workplace harassment then you need a knowledgeable advocate working on your behalf. Even if you believe yourself unable to take action because you signed a nondisclosure agreement, you may be able to take action. Contact the employment lawyers at Schorr & Associates if you have been harassed or discriminated against in your workplace.