What a Prior Fox News Discrimination Suit Shows About Roger Ailes and Proving Retaliation

The 35 Most Powerful People in Media: Roger Ailes - H 2016
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Before Gretchen Carlson, there was Catherine Herridge.

Six years before Carlson sued Fox News CEO Roger Ailes Wednesday for allegedly retaliating against her for complaining about discriminatory treatment, the U.S. Equal Employment Opportunity Commission brought a federal lawsuit against the cable news network over its treatment of Herridge, who had worked as an on-air reporter there since 1996. Although Ailes wasn't personally sued in that prior case, his actions did gather some attention. A judge's ruling in 2011 also showcases some of the advantages and challenges that Carlson may confront as she seeks to hold Ailes accountable for the decision to let her go as a Fox News host.

According to a declaration from Herridge in the case, she contacted Ailes in 2006 and complained to another programming executive about Fox's refusal to give her a trial run as an anchor. Herridge said she was "suspicious" that Fox wasn't giving her this opportunity as allegedly promised because she was then a 42-year-old female. The following year, Herridge reported a meeting with Ailes and expressed concern about the unfair treatment of women in the Washington, D.C., bureau. Herridge followed up by email, telling Ailes that he needed to hire a manager who would implement company HR policy.

Herridge stated in her declaration that practices at the office didn't change, but she did get a trial run as a weekend anchor. Afterward, Herridge said she was informed that Fox wanted her to do more light news and entertainment. A male was put into the weekend anchor position, which caused her to again complain about discrimination. The legal department began an internal investigation, but Herridge let it be known in a Feb. 7, 2008, email that she was concerned that the investigation wasn't thorough nor impartial.

The very next day, Ailes sent a message to the entire Fox News organization. Herridge saw it as an attempt to silence her, though she wasn't specifically mentioned.

"The best things about those days [the early days of Fox News] were the … lack of complaints," Ailes wrote. "But today I sometimes hear too much selfish complaining, petty whining, and a desire to have what someone else has. … As I have always said, negative people make positive people sick. … You should note that there are no locks on the outside of the doors keeping us here. I would never want to hold anyone back. I decided many years ago that I did not ever want to work with unhappy people because life is too short and the first 100 years in the ground is just the beginning."

An echo of this quit-whining attitude can be seen in the new lawsuit. After Carlson says she complained about Fox & Friends colleague Steve DoocyAiles allegedly responded by calling Carlson a "man hater" and telling her that she needed to learn to "get along with the boys." After she was reassigned from Fox & Friends in 2013, Ailes allegedly told her that she saw everything as if it "only rains on women" and admonished her to stop worrying about equal treatment and getting "offended so goddamn easy about everything."

Notably, Carlson isn't suing Fox News for engendering a hostile workplace despite the fact that nearly every discrimination lawsuit includes a claim against the employer. Carlson could always amend the complaint, but for now, she's claiming violations by Ailes, 76, arising from how he "unlawfully retaliated against Carlson and sabotaged her career because she refused his sexual advances and complained about severe and pervasive sexual harassment."

The EEOC suit against Fox News was also premised on retaliation. In the Herridge case, the cable news network allegedly drew up a contract for her with specific language intended on dissuading her from making further complaints of employment discrimination. 

The lawsuit failed for two major reasons. Only one, though, figures to be a factor in the Carlson lawsuit.  

According to U.S. District Judge Richard Leon's Aug. 25, 2011, summary judgment opinion (read here), Herridge couldn't prove financial injury to establish that a "materially adverse action" had occurred that would have the effect of dissuading a reasonable employee from engaging in a protected activity. Moreover, the judge ruled that emotional distress in contract negotiations wasn't legally sufficient to constitute a materially adverse action either.

Had Carlson's lawsuit been brought in federal court under Title VII, Ailes might seek a challenge over whether a failure to renew her contract constituted a materially adverse action. However, she's suing (in New Jersey state court) alleging a violation of a New York City statute that explicitly states that retaliation claims are not conditional on a materially adverse change in the terms and conditions of employment. In fact, New York City lawmakers specifically amended its law in 2005 to reject the notion that a plaintiff must give evidence of a materially adverse change to sustain a case of retaliation.

So in at least one respect, Carlson will find it easier than Herridge to prove retaliation. But then there's the second reason why the EEOC lawsuit failed.

In the summary judgment opinion, Leon also came to the conclusion that even if the EEOC could establish a prima facie case of retaliation via the proposed language in Herridge's contract, Fox News prevailed by offering a legitimate, nondiscriminatory reason for its actions. The judge wrote, "Indeed, Herridge's own agent revealed an additional and (apparently) even weightier motive for stalling their negotiations: money! … To that end, an objective evaluation of Herridge's salary negotiations supports Fox News' assertion that 'bewildering salary demands were the primary reason for the delay in reaching a new Agreement.'"

Carlson's lawsuit will allow Ailes a similar opportunity to attempt to put forward a legitimate, nondiscriminatory reason for his decision to cut ties with her. Already, the parties seem to be previewing the battle ahead. Ailes put out a statement yesterday that attributed Carlson's ouster to "disappointingly low ratings … dragging down the afternoon lineup," and Carlson's lawyer responded today: "Ailes' claim that Gretchen Carlson was terminated because of bad ratings is demonstrably false. The publicly available ratings confirm the allegation in the Complaint that at the time of her termination Gretchen's total viewership was up 33 percent year to date and up 23 percent in the key demographic."

There will be plenty of fussing over the meaning of the ratings. For the second quarter of 2016, Carlson easily won her afternoon time slot among cable news shows, but at 1.15 million viewers and 183,000 adults age 25-54, she ranked a mediocre 14th among all Fox News programs.

Then again, the case may not turn on whether Carlson can prove retaliation or whether Ailes can establish a nondiscriminatory reason for his actions. It's fairly rare that cases end up in judgment. Many settle. And the biggest X-factor is something the EEOC lawsuit against Fox News failed to get: extreme media attention. Already, Carlson's lawyers are speaking publicly about more women coming forward to complain about Ailes and hinting at plans to depose them. If the lawsuit survives initial hurdles (like jurisdiction), there will surely be invasive discovery, perhaps even on embarrassing topics addressed in the complaint like other Fox News hosts who allegedly didn't rebuff Ailes' sexual advances

The calculation on whether to defend the case to judgment could depend on this factor as much as the merits. Of course, as the Herridge case shows, some retaliation lawsuits do end up being ruled upon by judges. As for Herridge, she is still working at Fox News.