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Ann Curry And Gretchen Carlson: How Their Sexual Harassment Charges Show The Demise Of Employer Sexual Harassment Defenses

Ann Curry, former host of the Today show and co-host with former host Matt Lauer, claims that the atmosphere of sexual harassment at the network was pervasive.

Curry was dismissed from the Today show in 2012 at the behest of Matt Lauer, who was fired in November 2017 because of allegations of sexual misconduct. Curry recently stated on CBS This Morning that she knows what it is like to be publicly humiliated.

Curry claims she would be surprised if women would not agree that a pervasive environment of verbal harassment existed at NBC in 2012. Curry stated that there was a "power imbalance" between men and women and that the environment of harassment had nothing to do with physical attraction between male and female employees. Jessica Sager "Ann Curry: Sexual harassment was 'pervasive' at NBC News" pagesix.com (Jan. 17, 2018).

Commentary by Jack McCalmon, Esq.

Ann Curry is correct. Most incidents of sexual harassment have nothing to do with the physical act of sex; wanting to have sex with someone; or even being physically attracted to another person. Sexual harassment, like other forms of illegal harassment and some forms of abuse, is about exerting control over another person because of his or her gender.

It is interesting to note that Ann Curry, in the excerpts of her interviews I have read, does not claim she was sexually harassed, just that a pervasive environment of harassment existed at NBC. Curry's ouster from the Today show was highly publicized in 2012, in part, because Lauer is accused of orchestrating it; nevertheless, it never led to a sexual harassment complaint or any charge from Curry other than it caused public embarrassment. Other Today hosts like Katie Couric and Savannah Guthrie have also not alleged sexual harassment.   

Curry's actions contrast greatly with those of former Fox News host Gretchen Carlson's claim of sexual harassment. Unlike Curry, when Carlson was notified that her contract was not being renewed, she claimed the non-renewal of her contract was because of sexual harassment. Jessica Rawden "Why Gretchen Carlson's Contract Actually Wasn't Renewed, According To Fox News" https://www.cinemablend.com/television/1532010/why-fox-news-actually-got-rid-of-the-reporter-whos-suing (2017).

At first Fox News denied the claim, alleging that Carlson's charge was in retaliation for Fox News not renewing her contract. In support, Fox News produced letters from Carlson where she begged to stay at Fox News despite lagging ratings, hardly the actions of a sexual harassment victim, according to Fox. Chris Spargo "'I wouldn't let you down': Fox News releases fawning letters Gretchen Carlson wrote to Roger Ailes pleading for airtime in months after she alleges he asked her for sex" http://www.dailymail.co.uk/news/article-3681033/I-know-wouldn-t-let-Fox-News-releases-letters-Gretchen-Carlson-wrote-Roger-Ailes-pleading-airtime-months-alleges-asked-sleep-him.html (Jul. 09, 2016).

Fox News later settled with Carlson after an internal investigation, but Roger Ailes, the person accused of sexually harassing Carlson, continued to deny the allegations of Carlson. Ailes died in 2017 and his own settlement with Fox News did not allow him to defend himself against Carlson's charges.

Carlson's letters begging Ailes to let her keep her job were considered unimportant in 2017.  In the past, when defending sexual harassment charges, written letters from the purported target of sexual harassment begging to stay employed and wanting more "air time" was powerful evidence that the complainant did not experience sexual harassment, especially if the employee had other options. The logic is that if a hostile environment did exist, then the target should have brought a lawsuit right when the act occurred or the environment became too hostile to stay.     

Since Ann Curry left the Today show, sexual harassment charges and retaliation charges related to sexual harassment have spiked, and employers relying on evidence that the complainant welcomed or, at least, was not negatively affected by a hostile environment, have been seriously diminished. Arguments that a complainant's failure to report sexual harassment is proof that sexual harassment did not exist are tossed aside with a quick rebuttal that every employee, no matter their situation, wants to continue to be employed and fears coming forward because of sexual harassment, no matter how persuasive the evidence to the contrary.

For employers, they should not rely on the actions of the target, but should look at the actions of every employee to determine if their actions, welcomed or not, could be considered sexual harassment.

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