Megyn Kelly Missed an Opportunity to Help Women

Propelled by salacious details about Roger Ailes’ unwanted advances and her bruising contretemps with now President-elect Donald Trump, Megyn Kelly’s new tell-all memoir, Settle for More, has grabbed headlines. While Kelly should be commended for addressing sexism in the workplace, lamentable is her lost opportunity to provide significant guidance for women facing similar circumstances, a strange omission, given her background in law.

In the case of Ailes, Kelly contends that management ignored her complaints and, given his widespread media influence, that her only real choice in the face of their brushoff was to buck up and soldier on, an all too familiar story. Recounting experiences like hers is important. But women should know about the decades of legislation, regulations and court decisions that exist to support women taking action. Women should be informed of these protections at every opportunity and, should they face a hostile work environment, be aware that struggling quietly is not their only option.

I am not condemning Kelly for doing what she did. It was her choice and her right. Every woman is entitled to her own path in deciding how best to respond to workplace conditions. But Kelly could have helped other women by mentioning the Equal Employment Opportunity Commission (EEOC).

Help is out there. Established in 1965 as part of the landmark 1964 Civil Rights Act, the EEOC exists to ensure that employers do not discriminate on the basis of race, creed, color, national origin and sex. Employers with 15 or more employees are subject to EEOC mandates and, in many cases, state regulations extend the protections to uncovered groups.

Over time the courts have reinforced EEOC protections for women. In the 1980s, rulings specifically addressed maternity-leave provisions and equal access to training and promotion opportunities. In 2010, the EEOC settled a class-action suit with Walmart through consent decree, which involves no admission of guilt, for $11.7 million which alleged that the retailer had systematically barred qualified women from job opportunities open to men.

EEOC regulations provide a path for women in less high-profile jobs to challenge discriminatory practices. In response to improper treatment, a woman can go to her Human Resources office and register a formal complaint. Taking this step requires knowledge of EEOC rules, courage and sound documentation of who, what, when and where in relation to the episode(s) of concern.

Some employers offer mediation in relation to EEOC-related issues. Others may provide basic remedies, such as a supervisory change.

If the HR response is unsatisfactory, a woman can lodge a formal complaint with a local EEOC field office which will open an investigation. In the case of unresolved, legitimate disputes, the EEOC may sue the employer on her behalf or issue a right to sue order to support such action by her.

Gretchen Carlson, Kelly’s former co-worker at Fox News, launched a wrongful termination suit against Ailes last July. She alleged that she was fired for rebuffing his advances and reportedly backed up her claims of his behavior with some audio recordings. Fox News Corp. settled with her for a reported $20 million and took the unusual step of issuing a public apology.

Carlson’s approach is noteworthy. It elevated her claim above “she said/he said” status. She also worked through the system, provided documentation and proved such actions produce results.

To her credit, Kelly encouraged other women, who had experienced similar treatment, to rally publicly around Carlson. Her point is well taken as others may be willing to sign on to a complaint if a woman steps forward.

To be sure, taking any action against an employer involves risk, often significant. And, even though protections are in place, they are imperfect.

When jobs are hard to come by, making a complaint may be unpalatable. Sole breadwinners may also face different stakes than those with no dependents. Employment contracts can make pursuing such claims externally difficult. And, should a dispute end up in court, resolution can take years. Employers with deep pockets may be willing to fight long and hard, and any payouts can be small.

In the face of this risk, the overriding question is: Is coming forward worth it?

Some disputes are fairly easy to resolve, and employers generally like resolution, as a happier workforce tends to be more productive. Also, formal complaints to the EEOC are time-consuming and pose potential, substantial liabilities.

The courts and EEOC have also acted to reduce the risk to a woman of coming forward and made clear retaliation is a no-no. Boeing and the EEOC settled two cases for $380,000 through consent decree, which specifically included damages for demoting female employees following discrimination complaints.

Further, the recent focus on transgender rights has revived concerns about workplace discrimination which can serve to help women. Reflecting these concerns, the EEOC has added sexual orientation and gender identification as protected categories.

Women should be reminded that the law is on their side and, if they choose to call a discriminatory or hostile employer to account, they do not have to go it alone.