Short Take: Gretchen’s New Deal

Not only is Roger Ailes dead, but there is no one who recognizes the name who is unaware of what he did to Gretchen Carlson. There’s a movie and series about it. It was in the funny papers. And then there’s the pervasive reporting of the settlement between Carlson and Fox over Ailes’ sexual harassment and antics against Carlson. Or to put this another way, everyone knows.

So why is there an op-ed by Carlson in the New York Times calling on Fox to give her “voice back”?

“Winning” my complaint with a settlement and a non-disclosure agreement meant I was, essentially, forced into silence. NDAs were originally designed to safeguard the sharing of proprietary corporate information (think the formula for Coca-Cola), not to protect predatory behavior. Although NDAs usually prohibit employers from disparaging victims, whisper campaigns often follow women for years. As I documented in my book “Be Fierce,” the vast majority of survivors never work in their chosen professions again. American industry has lost many talented women to harassment, while allowing predators to continue climbing the professional ladder (where they have the potential to victimize even more women).

Does she want to write another book? Sell her life rights? Did the money run out, or have her tastes in caviar changed from Osetra to Beluga? This isn’t to trivialize what happened to her at Fox, but her new game is claiming she was “forced into silence.” No one put a gun to her head and said, “take the money or else.” Part of the deal was the non-disclosure agreement. She knew it was there and signed anyway. She could have refused and taken the case to trial. She didn’t.

There is an argument that it should be against the law, contrary to public policy, to allow NDAs in cases of sexual harassment. Why the government has any business in arms-length negotiations of contracts is a matter of ideology, as some view it as a proper exercise of legislative fiat to “level the playing field” between parties when one has greater clout than the other. Then again, it’s hardly clear that Carlson didn’t have all the clout she needed to take down Roger Ailes and do serious damage to Fox in the process.

But then, without an NDA, a great many people claiming sexual harassment would be left with no option but to go to trial and roll the dice, as the incentive to settle would be greatly reduced if the “victim” could do the same damage even if the matter was resolved. If NDAs were unlawful, there would be nothing to prevent an accuser from taking the money and then doing the same damage as she would had she not gotten paid.

So what is it that Carlson seeks to accomplish now, money in her pockets and the story of her harassment at Ailes’ hand well known? Does anybody really want to hear the sordid details of sex with Roger Ailes? Has Carlson eaten through her “winnings” and needs some more?

After Stormy Daniels told all, despite having an NDA, it came into fashion to contract for a deal and then feel free to ignore its terms. No one called Daniels dishonorable for violating her NDA. Indeed, she’s a hero, and it’s worth noting, a remarkably witty person about it despite her poor choice in lawyers. Does Carlson want to be a hero too? Does she feel left out when other women are me-tooing all over social media and getting millions of “likes” with their “thoughts and prayers”?

What happened to Gretchen Carlson was terrible and wrong on every level. She sued, as well she should have, and reached a settlement in which she was paid an amount of money that she decided was acceptable. The deal included an NDA. It didn’t mean she was “forced” into silence, but that she chose silence plus money to go away. That was the deal to which she agreed and she has no cause to complain about it now.

7 thoughts on “Short Take: Gretchen’s New Deal

  1. delurking

    This is kind of like when you buy something and then it goes on sale two days later. Naturally it upsets you when that happens. Everyone knows that if you buy from a major company, you can call customer service and they’ll credit you the difference. Granted, this is usually because you could just return the item and then buy it again at the sale price and they don’t want to make you jump through hoops and cost them more money dealing with you in the process; but whatever. See, she made this deal before she realized that better deals would be available really soon. She couldn’t know better deals would be available, so it is really unfair that she didn’t get to take advantage of them.

    1. Dan

      > See, she made this deal before she realized that better deals would be available really soon.

      Except that she doesn’t know that. Maybe she could have gotten the money without the NDA today. Maybe not. Maybe the deft wouldn’t have settled at all. Maybe they would have settled for much less. Maybe…

      Settlements of lawsuits aren’t fungible goods like toasters.

  2. F. Lee Billy

    Everybody wants their voice back, even me, the most famous defense attorney from the southern district of BosyTown.

    What we have here Is a conflation of NDA with DNA. One is Scientific and the other is Simpley Horrific, to put it mildly. You pay some lady survivor to keep her mouth shut! What planet are you living on? What do you really know about the weaker sexes?
    P.S., They’re not as weak as they look, especially when they cry like babies in front of the judge(s). No man alive can pull off those performances.

    So we’re back to Square One where nothing is resolved, irregardless of press, press agents, or other financial and fiduciary obligations. Free speech cannot by abridged by some dann NDA or DNA, for that matter. Trust it.

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