Kathleen Peratis is a partner at the New York law firm Outten & Golden LLP, where she chairs the firm’s sexual harassment practice group. She was formerly the director of the Women’s Rights Project of the ACLU.
Gretchen Carlson got something out of her settlement with Roger Ailes that most women who make such a claim against a powerful man don’t obtain. Not the money — although the $20 million to be paid to the former Fox News Channel host is indeed eye-popping. Most women who bring successful sexual harassment claims do eventually receive some compensation.
Carlson is different in another way: She emerged with her honor and reputation intact. In my experience as a lawyer who has represented hundreds of sexual harassment victims, that is rare.
In the real world of sexual harassment cases that take place outside the public glare that accompanied Carlson’s claims, many women forgo making solid claims because they know they risk being depicted as liars or sluts. They worry about being branded troublemakers and suffering harm to their ability to be employed in the future.
Indeed, when Donald Trump, questioned about Carlson’s claim, said a few months ago that a woman who experiences workplace sexual harassment should consider finding another job, or even another career, he had — sadly — a point.
I routinely tell clients considering making complaints that they should do so with the full knowledge that staying at their job might well become untenable. Human resources employees know who signs their paychecks. They manage risk, which often means minimizing complaints and smoothing over problems without actually fixing them.
When victims decide to come forward, they are often blamed, doubted and subjected to retaliation. Ivanka Trump herself confirmed she had experienced this “no-win situation” in her 2009 book, “The Trump Card: Playing to Win in Work and Life,” when she wrote, “If I ignored the inappropriate remarks, I might come across as weak. If I responded too harshly, I’d be a tightly wound witch.”
What, then, accounts for Carlson’s success? First, there was an avalanche of evidence. It is impossible to overstate the importance of the corroboration unearthed by Carlson’s legal team and the investigation commissioned by Fox. By some accounts, there were 20 other women who also reported inappropriate behavior from Ailes. Corroboration gives weight to any legal claim, but it is particularly crucial with allegations of sexual misconduct.
That suspicion of sexual harassment claims echoes the legal system’s sad legacy of not believing women who “cry” rape. As recently as 50 years ago, most states would not allow a jury to convict a man accused of rape based solely on the uncorroborated testimony of the victim.
Similar attitudes remain toward women making claims of sexual misconduct and are reflected in federal anti-discrimination law. Sexual harassment on the job was thought to be a private peccadillo and not a civil wrong until 1974. Anita Hill was disbelieved by many in 1991, and to this day under federal anti-discrimination law, individuals claiming sexual harassment have to jump through hoops not required of those alleging other kinds of discrimination, such as complaining internally, which discourages some women from coming forward at all. (Carlson avoided all this by simply suing Ailes himself under the New York City Human Rights Law.)
Second, despite the still-requisite cautions for ordinary sexual harassment plaintiffs, Carlson’s experience suggests that things are actually getting better. The bad old “Mad Men” days, where Peggy Olson had to grin and bear harassing comments and behavior, are waning.
Generational differences are having an effect on workplace behavior. We have all heard that Rupert Murdoch’s children were appalled by Ailes and wanted to get to the bottom of Carlson’s claims.
Trump’s ignorant remarks reflect a “Mad Men” mentality, and they will come back to haunt him. He described one ugly reality. The Carlson settlement points us in a more hopeful direction.