If Investigators Find Roger Ailes Harassment, Lawyers Say Fox is Obligated to Act

As the decision about Ailes' future as CEO looms, employment litigators discuss Fox's obligations in responding to the harassment claims.
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From left: Gretchen Carlson, Roger Ailes, Megyn Kelly

What appears to be a term sheet setting Friday as Roger Ailes' last day as CEO of Fox News has the industry abuzz, and entertainment litigators say it's not unusual for a company to act before an investigation is complete. 

Ailes attorney Susan Estrich tells The Hollywood Reporter his exit from the network is being negotiated, but nothing has been finalized. 

Paul, Weiss was hired by parent company 21st Century Fox to investigate sexual harassment allegations against Ailes after former anchor Gretchen Carlson sued him, claiming her contract wasn't renewed because she repeatedly rebuffed his advances. 

That investigation hasn't concluded, but it appears Fox isn't waiting for a final report before parting ways with Ailes, says Mike Delikat, who heads the employment litigation practice at Orrick and is frequently engaged by boards of directors to investigate executive misconduct.

Delikat says it's premature to read Ailes' exit negotiations as a sign that investigators will conclude there was wrongdoing or illegal conduct.

"Once these things are public, the higher you are in the company, the higher the standards to which you are held," says Delikat. "If you allow your CEO to get away with conduct that is unlawful or inappropriate, how can you expect to hold others to that? There’s a premium on making sure they send the right message about being serious about their policies."

In terms of legal liability, Drinker Biddle employment litigator Kate Gold says a company faces the same stakes regardless of how well-known the person who is being accused is. 

"A lawsuit is a lawsuit and there’s still exposure for damages even if the alleged perpetrator isn’t high-profile," she says. "From my perspective, a company is going to take the action that’s going to correct the problem because they don’t want to be exposed to liability in any kind of proceeding, whether it's arbitration or a jury trial." 

If popular Fox News personality Megyn Kelly did tell investigators Ailes harassed her a decade ago, as reports suggest, it may not affect the outcome of this case — unless the company knew about it and did nothing. 

Gold says if Kelly was harassed, that doesn't mean it happened in Carlson's case and, conversely, others saying they never experienced harassment by Ailes doesn't mean Carlson isn't telling the truth. So she cautions people to keep an open mind as women continue to publicly side with Ailes or speak out against him. 

Regardless of when and how Ailes and Fox part ways, Delikat says the company will finish the investigation into Carlson's allegations. He notes that it's extremely unusual that she did not sue the company itself, only Ailes, which could give her leverage to get her job back. 

If investigators find wrongdoing, Delikat says, Carlson could still have a claim against the network: "They might have to offer her her show back, or make other reparations to her." 

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