What is the Sexual Harassment Defense Industrial Complex?
Loosely defined, it is a mix of lawyers, public relations professionals, female character witnesses and pundits who play a role in beating back sexual harassment claims when they are leveled against powerful men backed by a powerful institution. It also includes “in-depth internal investigations,” such as those launched at 21st Century Fox, NBC Universal and CBS in the wake of sexual harassment scandals, which are often led by attorneys hired to defend the companies.
The Complex has been in overdrive the past couple years, thanks in part to the #Metoo movement.
Two women, both top lawyers, were recently on opposite sides of a lawsuit: Nancy Erika Smith represented former Fox anchor Gretchen Carlson in her sexual harassment suit against the late Roger Ailes while Susan Estrich defended the Fox News chief.
Their tense relationship is somewhat ironic. Estrich is a feminist legal scholar and was once a hero of Smith’s. But over time, Estrich has become emblematic of the antithesis of a feminist legal hero. She’s now a key player in what could be called the Sexual Harassment Defense Industrial Complex.
Even before Estrich’s work for Ailes in this latest wave of prominent cases, sexual harassment law was expanding. Over the past 30 years, defense lawyers have found more ways to get paid, says attorney Ari Wilkenfeld, who represented the woman whose complaint against Matt Lauer prompted his firing from NBC’s “Today” show, and also Linda Vester Greenberg, who alleged she was sexually harassed by Tom Brokaw in the 1990s. Both Lauer and Brokaw denied wrongdoing.
Developments in the law have allowed defense attorneys who specialize in sexual harassment cases to sell corporate clients a smorgasbord of products, from boilerplate policies to trial defense — none of which, Wilkenfeld says, have had any measurable impact on the sexual harassment problem “other than to make a ton of money for these lawyers.”
With these attorneys’ help, corporations are treating sexual harassment less as a legal or ethical problem than a public relations one, where employers “are making a big show of conducting internal investigations.”
The Sexual Harassment Defense Industrial Complex is well-established and follows a cliched formula, such as when an executive leaves a job to "spend more time with his family" or a former president announces a book deal.
First comes a headline. Then, a suspension or firing. Then, a lineup of female character witnesses, and then, inevitably, the internal investigation that promises to get to the bottom of all of it. Sometimes the fourth step precedes the second.
As corporations and, most recently, media companies have seen their most prominent figures accused of serious sexual harassment — Fox News’s Ailes and Bill O’Reilly, NBC’s Lauer and Brokaw; and CBS’s Charlie Rose, Jeff Fager, and Les Moonves — law firms are on speed dial for their sage (and costly) advice.
The name recognition of the legal industry’s stars has ramped up in the corporate #MeToo defense world. Former SEC chair Mary Jo White of Debevoise & Plimpton and Nancy Kestenbaum of Covington & Burling are two of the highest profile lawyers to have been pulled in, both are working for CBS’s board of directors as part of an investigation into former chief executive Leslie Moonves’s alleged harassment.
Investigators for CBS have questioned more than 150 people and must wrap up by the end of January to determine whether Moonves will receive the $120 million he would be due if he isn’t fired for cause. Despite the sweep of such investigations, they can still have gaping holes. Two of Moonves’ top female executives, Nancy Tellem and Nina Tassler, who led the company’s entertainment division for more than fifteen years, have not talked to investigators, according to two people familiar with the process. Tellem declined to comment; Tassler did not respond to messages seeking comment.
For its Lauer investigation, NBC Universal opted to use in-house legal officers instead of an outside firm. (Two outside law firms blessed the investigation.) But that investigation was hardly comprehensive. Several who sat alongside Lauer at different stages of his career were not contacted. A lawyer from NBC called Ann Curry only after The Washington Post asked the company for comment reacting to Curry’s concerns about Lauer’s treatment of women. She says she saw that contact as intimidation, not as a genuine effort to investigate Lauer’s behavior.
Hilary Smith, an NBCUniversal spokeswoman, declined to comment on Curry’s experience but said that “everyone we spoke with as part of this investigation was dealt with in a professional manner.” In defending the company’s decision to run its own investigation, Smith says, “outside counsel and independence are not synonymous.”
The purpose of hiring big-name lawyers “is not necessarily to find out the facts as a predicate for corporate action,” says super-lawyer David Boies, “but to get findings that can be used to convince the public that they have done a thorough investigation.” (Boies represented Harvey Weinstein and hired firms that threatened to discredit reporters who were working on stories about his client.)
In a merging of Sexual Harassment Defense Industrial Complex powerhouses, Estrich recently announced that she will join Boies, Schiller & Flexner, where she will help lead the California practice. Estrich says the opportunity to work with Boies, whom she has known for years, was a key element in her decision.
Boies had been trying to hire Estrich for almost 40 years and says he saw her not only as an expert in investigations and sexual harassment, but as a “first-class lawyer” with range.
Estrich says the work she enjoys doing now is with chief executives and companies “when they get word or have reason to believe they have a problem.” She likes to come in “before the public executions begin. You don’t want to find Gloria Allred on your doorstep.”
She sounds exasperated when asked how she could square her defense of Ailes with her groundbreaking work establishing legal frameworks to protect women.
“Roger was one of three men I represented in 37 years,” she says in what is surely hyperbole given the number of clients she has had over her long career. She then listed her accomplishments and contributions — including putting rape “on the curriculum of American law schools.”
Estrich says that about 37 years ago, she started telling her law students she was a rape survivor. Since then she hasn’t had a class in which students haven’t approached her at the end of the semester to say that they, too, had been a victim of sexual assault.
Ailes, Estrich argues, wasn’t accused of rape or assault. “Roger was accused of giving unwelcome hugs and kisses” and offering women jobs when he had no intention of actually giving them. (Ailes was also accused of unwanted physical pursuit of his own employees and physical and emotional coercion in the case of Laurie Luhn, as well as professional retaliating against women who did not succumb to his advances.)
In the midst of the Kavanaugh hearings, Estrich offered — unsolicited — her disgust for the treatment of Christine Blasey Ford. She called Ford the “best witness central casting could find” and decried that even that “was not enough” to convince Republican senators of her allegations. Women, she says, know they will be put through the “meat grinder” if they come forward. “Most rape survivors don’t want their names thrown around, and what happened to Dr. Ford answers why.”
Still, in plaintiff circles, Estrich is greeted with the kind of passionate disdain reserved only for traitors. In the 1980s, she beat out Merrick Garland to become the first female editor of the Harvard Law Review. She later clerked for Supreme Court Justice John Paul Stevens. Her research and writing helped advance the legal and cultural understanding of “acquaintance rape.” She was the first woman to manage a presidential campaign when she ran Michael Dukakis’ 1988 bid. In 1991, during Clarence Thomas’s confirmation hearing, Estrich coined the term “nuts and sluts” to describe the concerted efforts to discredit Anita Hill and defend Clarence Thomas.
Decades later, her defense of Ailes was shocking to some. But she played the role of a twofer for Ailes’s cause — officially she was his attorney, and because she had been friends with Ailes for decades, she also served unofficially as a Woman Attesting To His Character. Estrich’s work for Ailes took place a year before the #MeToo hashtag would begin trending.
Smith says Estrich brought down the full force of the Sexual Harassment Defense Industrial Complex on Ailes’s behalf and she had to fend off vicious attacks on Carlson’s character and credibility.
Estrich says she helped quell those attacks. Smith laughs at that notion and says that the personal attacks on Carlson came from Ailes’s longtime private investigator and public relations operatives.