The 2019 movie Bombshell lives up to its name as an easy way to learn about workplace sexual harassment – and what companies are supposed to do when it happens.
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In one of the first scenes, Gretchen Carlson and her lawyers watch the network’s morning show Fox and Friends and discuss her contemplated sexual harassment lawsuit. Carlson describes how CEO Ailes (played by John Lithgow, another uncanny resemblance) repeatedly sexually propositioned her and other women at Fox by telling them, “To get ahead, you’ve got to give a little head.” Ailes’ not so subtle implication was that he would help their careers if they gave him oral sex – but would stall or otherwise hurt their careers if they refused. Carlson said that she rebuffed Ailes’ sexual advances, and as a result Ailes retaliated against her by moving Carlson to a television show in a bad time slot.
Roger Ailes’ conduct is a clear example of a type of unlawful gender discrimination known as quid pro quo sexual harassment. Quid pro quo is a Latin phrase. It means “something for something.” When an employer links sexual conduct to getting hired, keeping a job, or other employment benefits like raises, promotions, or demotions, it is quid pro quo sexual harassment.
Both California law and federal law forbid quid pro quo harassment (and other kinds of employment discrimination). California’s applicable civil rights law is the Fair Employment and Housing Act (“FEHA”). Federal law that forbids this kind of sexual harassment is known as Title VII of the Civil Rights Act of 1964 – or “Title VII” for short – and is codified in 42 U.S.C. 2000e, et seq.
Importantly, California’s FEHA provisions usually are more generous than Title VII. Codified in Government Code § 12940(a), the FEHA prohibits discrimination in the terms, conditions or privileges of employment on the basis of sex, gender, gender identity, gender expression or sexual orientation (as well as certain other prohibited characteristics).
Another FEHA provision, Government Code § 12940(j)(1), similarly bars harassment on the basis of those same characteristics. Changing the conditions of Gretchen Carlson’s job for the worst – because she rebuffed her boss’ sexual advances – is a classic example of such prohibited discrimination.
Returning to the film’s early scene of Carlson and her lawyers brainstorming: Carlson and her lawyers also discuss how her Fox employment contract provides that if she were to sue the company, her claims would have to be decided in private arbitration instead of a public jury trial in a courtroom. To avoid that outcome, Carlson decides to sue Roger Ailes personally for sexually harassing her, rather than suing Fox. Suing Ailes personally avoided triggering the arbitration provision. It let Carlson “have her day in court.”
Similar to New Jersey, California law lets a victim sue her/his job supervisor for harassment that he or she commits. Government Code § 12940(j)(3) provides that, “[a]n employee … is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer … knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”
This early scene with Carlson and her lawyers offers a terrific primer on many aspects of California sexual harassment law. Later scenes illustrate more important concepts.
For example, at one point we see a Fox lawyer telephone one of Rupert Murdoch’s sons to tell him about Gretchen Carlson’s lawsuit. The lawyer recommends doing an internal investigation into Ailes’ conduct. The company lawyer warns that failing to investigate Carlson’s claims could be used against Fox as evidence of the company ratifying Ailes’ conduct (i.e., approving or signing off on what Ailes did after the fact).
This scene’s conversation illustrates how California law requires employers to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.” See, Government Code § 12940(k). Once Carlson’s allegations about Ailes’ sexual harassment came to light publicly from her lawsuit, Fox faced liability for failing to prevent future harassment if it did not investigate Carlson’s claims.
Or consider this 2nd example: Fox commentator (and retired judge and Trump surrogate) Jeanine Pirro confronts Megyn Kelly about her lack of public support for Ailes. Kelly – herself a lawyer who worked at the national Jones Day corporate law firm before switching to tv news – cautions that if (a) Fox covers up Ailes’ sexual harassment, and (b) Ailes later sexually harasses someone else at Fox, the company could be liable under Title VII for potentially hundreds of millions of dollars in punitive damages.
In that scene, Megyn Kelly correctly said that Title VII could subject Fox to punitive damages. She arguably, however, overstated Fox’s potential liability – at least with respect to damages unrelated to lost income.
The phrase “Title VII” refers to the part of the federal Civil Rights Act of 1964 that prohibits sexual harassment and other discrimination in the workplace. Federal law allows punitive damages to be awarded for intentional discrimination cases in which a defendant committed discrimination with “malice or with reckless indifference” to the plaintiff’s rights. So if Fox covered up Ailes’ sexual harassment and he did it again, Fox’s coverup would be evidence of malice or reckless indifference (i.e., “ratification”) that could lead to punitive damages liability. So far, Megyn Kelly was right.
Unfortunately for victims of sexual harassment and discrimination, Title VII caps emotional distress and punitive damages recoverable against the biggest employers like Fox (more than 500 employees) at $300,000. The cap is lower for employers with fewer employees. See https://www.law.cornell.edu/uscode/text/42/1981a. As a result, there would be minimal exposure for claims involving most employee victims who suffer serious emotional harms given that (a) their lost past and future income is unlikely to exceed $1 million, and (b) the most that federal law permits for combined punitive and emotional distress damages is $300,000.
Fortunately for California employees and unfortunately for Ms. Carlson (who worked in New York), California has no comparable statutory caps on either emotional distress damages for unlawful discrimination or punitive damages. [Constitutional “due process” caps on punitive damages by limiting them to an unspecified ratio of compensatory damages is a separate issue.] Civil Code § 3264 allows punitive damage awards against a corporate employer where either an officer, director, or managing agent of the employer either ratified, authorized, or knew of before and consciously disregarded sexual harassment. If Fox’s executives actively covered up Roger Ailes’ sexual harassment, it could constitute authorization, ratification, advance knowledge or conscious disregard of Ailes’ conduct towards either Ms. Carlson or future sexual harassment victims and could expose Fox to punitive damages.
Ultimately, Gretchen Carlson settled her case with Roger Ailes for (per news reports) $20 million. That figure likely included a premium for the damaging publicity a litigated lawsuit would have caused Fox.
Gretchen Carlson is not alone in winning big recoveries for sexual harassment against corporate defendants. The landmark case Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128 (1998), shows how substantial punitive damage awards can be imposed against California employers who fail to investigate and appropriately act on claims of sexual harassment. In Weeks, a former legal secretary sued international law firm (then the biggest in the world) Baker & McKenzie for sexual harassment. The core allegations involved one of the law firm’s partners touching the secretary’s breast. After trial, the Court of Appeal upheld a $3.5 million punitive damages award based on evidence showing that the law firm’s management had turned a blind eye to reports of the male partner’s past sexual harassment of lower-
Similar to Weeks v. Baker & McKenzie, Bombshell illustrates how company culture can sweep sexual harassment under the rug – to the ultimate (expensive) financial peril of the employer. Throughout the movie, various women at Fox described how they experienced or otherwise knew about Ailes’ habitual sexual harassment but did not report it to the company. In one scene, Megyn Kelly and two women who worked for her discussed the ineffectiveness of an anti-
Although Megyn Kelly’s and her colleagues’ stated fears about retaliation if they reported Roger Ailes’ harassment were legitimate, many employers adopt policies that require employees to report – to anyone at the company – any unlawful discrimination they experience, observe, or think may be happening. Such policies exist to satisfy requirements under California law that employers take all reasonable steps to prevent discrimination and harassment from occurring, including maintaining a harassment, discrimination, and retaliation prevention policy. See, Government Code 12940(k) and 2 C.C.R. § 11023.
Federal law also gives incentive for employers to require employees to report harassment. Under Title VII, a company may avoid liability for harassment or discrimination that does not result in “an adverse employment action” (e.g., being fired or transferred to a lesser position – as happened to Gretchen Carlson) if the employer can show: (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer's preventive or corrective measures.
By requiring employees to report harassment and discrimination, employers may seek to cast as unreasonable employees who fail to promptly report such behavior and thus escape liability. This defense is known as the “Faragher/Ellerth affirmative defense,” a reference to two 1998 United States Supreme Court decisions (Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)), that established the principle.
Here are some of Bombshell’s biggest lessons to employers: don’t tolerate or hide sexual harassment (or other kinds of unlawful discrimination). Make sure you have effective policies to best prevent either sexual harassment or other unlawful discrimination – and make sure they are implemented and not just “dead” pieces of paper. Doing so protects both employees and the employer by helping minimize unlawful conduct and also effectively responding to it if it does occur.
The movie also has key lessons for employees: consult immediately with an experienced employment civil rights lawyer if you either (1) are being sexually harassed, (2) believe you are the victim of other kinds of unlawful discrimination, or (3) believe that a co-
The information in this essay is not legal advice; it is provided for general educational purposes only. Los Angeles employment trial lawyer Jeffrey Cowan has decades of experience helping victims of sexual harassment – as well as businesses that either want to stop sexual harassment from happening in their workplaces in the first place or who find themselves facing such allegations. To learn more, contact Mr. Cowan by either calling (310) 394-
Call (310) 394-
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Employment Attorney • Business Trial Lawyer
The Cowan Law Firm
Phone: (310) 394-
Fax: (310) 394-
9301 Wilshire Blvd.
Beverly Hills, CA 90210
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