Harvey, Harvey, Harvey

By Mark F. Kluger and William H. Healey

Harvey Weinstein may be the best thing that almost ever happened to Roger Ailes. No doubt, if Ailes had lived long enough to see this week’s headlines and allegations, he would have rejoiced, claiming, “at least I wasn’t as bad as that pig.” But what have we really learned in this absolutely frenetic year in the world of sexual harassment, punctuated by the Weinstein revelations?

For one, there appears to be a change in the balance of power when it comes to workplace sexual harassment, albeit maybe only in high profile industries and even then, the question remains whether the shift is only temporary. In 1991, when Anita Hill testified about Clarence Thomas before the Senate Judiciary Committee, even we battle-tested employment lawyers could not envision how workplace sexual harassment issues would become such a dominant factor in employment law. Stories of harassment, headlines, lawsuits, administrative charges, investigations, policies, complaint procedures and training became the norm. That in itself was evolutionary and seemed to be a shift in the balance of power. Those who claimed to be subjected to workplace sexual harassment came forward in overwhelming numbers

Yet, we conducted many harassment investigations that resulted in a toss-up. She said this happened, he said it didn’t, and there were no witnesses. Case closed. Then came the internet and online porn in the office, followed by emails that never disappear, and now cell phone cameras and text messages and social media posts all of which also never disappear–creating evidence where there was none before all facilitated, of course, by the ever present bad judgment. But that evidence does not always prove wrongdoing; in fact, it often leads to proof of consensual relationships gone south or outright fraud.

Despite these changes, at least in some industries, it appears that Anita Hill had no impact on group play. Gretchen Carlson’s June 2016 lawsuit against Fox and Roger Ailes alleged that he “ogled her in his office and asked her to turn around so he could see her posterior.” As a quick aside, we have never been able to figure out the difference between “ogling” and “staring,” except for what is in the mind of the “ogler” and who really knows that? Carlson’s complaint in the New Jersey Superior Court also claimed that in a September 16, 2016 meeting, Ailes said: “I think you and I should have had a sexual relationship a long time ago…Sometimes problems are easier to resolve that way.” Sure Roger, sex never complicates a working relationship. The complaint concludes that 9 months after she rebuffed him, he ended her career at Fox.

What is truly puzzling about Carlson’s quick and huge settlement and Fox’s public apology is the fact that on the surface it sure looked like the network had a solid defense. Carlson’s contract expired and was not renewed. That is not the same as firing her. More significantly, her ratings were terrible. Keep in mind that those are Nielsen ratings not a performance review from her boss. And most importantly, in June 2015, Carlson’s book, Getting Real, was released in which she describes Ailes as “the most accessible boss I’ve ever worked for” and as “brilliant,” and “razor sharp,” adding, “we seemed to have a real connection.” But a year later, he was a dirt bag who sexually harassed her. Despite this evidence, it appears that in the face of the overwhelming traditional and social media blitz, Fox quickly folded, followed by the undoing of Fox President Bill Shine based on similar allegations by other on-air personalities and the network’s top rated personality Bill O’Reilly (and more recently, Fox’s lesser known anchor, Eric Bolling). The take-down of that group seemed to signal some kind of shift in the balance of power in sexual harassment cases.

In a February 2017 blog post, a former Uber engineer referred to the Millennial driven tech company’s frat boy culture. That’s all she said. Four months later, an investigation revealed 215 sexual harassment complaints in the company’s first 5 years of existence and Uber’s founder and CEO resigned, thus confirming that sexual harassment is not a symptom of coming of age in the 60’s and 70’s–Travis Kalanick was 4 years old when the 70’s ended. Travis’s rapid descent is also another example of a different dynamic in the sexual harassment paradigm.

Then came the most unusual twist. In June 2017, female entrepreneurs in the tech sector publicly accused several high profile venture capitalists of sexually harassing them, including demands for sex in exchange for funding their start-ups (which by the way sounds like a form of the oldest profession in the world doesn’t it?). The revelations were published in an extensive New York Times article. Incredibly though, in the days before the article even hit the press, one of the accused resigned from his own company, Binary Capital, which then collapsed. Days after the article appeared, Dave McClure, another accused VC guy, resigned from 500 Start-Ups, the company he founded and publically referred to himself as a “creep” and “an ass” apparently in an effort to prove that he is self-aware.  Here’s what’s stunning: Because these women were not even employees of those companies, they had no legal claim for sexual harassment. In fact, they came to VCs seeking start-up money. Yet look who went away empty handed. That is a seismic shift in the balance of power.

And then came Harvey, first the hurricane, and then Weinstein. And two questions arise: Under the weight of his extreme behavior, has the casting couch finally collapsed? If so, have employees and employers truly entered a new era in the sexual harassment dynamic? Considering how Weinstein so quickly replaced the nation’s focus on the Vegas massacre, when the next big thing hits, Harvey will likely crawl out from under the sex addict rehab facility and make his way back into the industry starting out with a low budget documentary about Anthony Weiner’s life in prison.

Ultimately, behavior in businesses and industries not likely to make headlines will probably not change much at all–except maybe for one thing. These examples demonstrate that the balance of power can shift, and just like Anita Hill ignited the revolution of sexual harassment claims, we could see a focus on sexual harassment that is unprecedented in its intensity, especially with regard to the expectation that employers will address the issue proactively and, if a claim arises, respond with great efficiency. With so much persistent attention on the issue of sexual harassment in 2017, it would be naive not to expect claims—legitimate and bogus.  No doubt, to be in the best possible position, employers must double down on their compliance efforts—which starts with an effective complaint procedure and training.

The fact is, so long as there are power plays to be made, sex will always be on the table. At least we know, we’ll always have work.