Stephanie Wilkins

Fox News Sexual Harassment Case Highlights the Need for Effective Sexual Harassment Policies and Procedures in the Workplace

Workplace sexual harassment has been grabbing headlines lately, thanks to charges filed by former “Fox & Friends” co-host Gretchen Carlson against Fox News Chairman and CEO Roger Ailes. Carlson has alleged that Ailes fired her for rebuffing his sexual advances and standing up to a sexist culture in the Fox newsroom.

The Allegations

The complaint, filed in the Superior Court of New Jersey, contends that Ailes explicitly asked Carlson for a sexual relationship during a meeting in his office. Carlson allegedly met with Ailes to discuss concerns she had about persistent harassment in the Fox newsroom. In that meeting, he reportedly told her: “I think you and I should have had a sexual relationship a long time ago and then you’d be good and better and I’d be good and better.”

According to the lawsuit, when Carlson refused Ailes’s advances, he retaliated by reducing her salary, cutting back her air time, and declining to renew her contract last month. The suit also accuses Carlson’s “Fox & Friends” co-host Steve Doocy of engaging in a “pattern and practice of severe and pervasive sexual harassment,” including “mocking her during commercial breaks, shunning her off air, refusing to engage with her on air, [and] belittling her contributions to the show.”

Carlson’s lawsuit came as a shock to many, as Ailes is one of the most powerful people in media and a revered figure in Republican politics. The lawsuit paints a picture of Ailes as a serial sexual harasser who ogled Carlson in his office, repeatedly made comments about her appearance, and called her “sexy.” Additionally, the Fox network is described as perpetuating a boys’ club environment.

The Ailes sexual harassment allegations are garnering nationwide attention because of Ailes’s status as a high-profile media mogul. However, sexual harassment in the workplace happens every day, and too often the issue goes unreported.

According to the most recent statistics published by the U.S. Equal Opportunity Employment Commission, workplace harassment is on the rise, with 27,893 harassment claims  filed in the U.S. in 2015. Of these, 6,822 were claims for sexual harassment.

Title VII of the Civil Rights Act of 1964 and state law prohibit employers from engaging in any form of sexual harassment that affects an individual’s employment, interferes with an individual’s work performance, or creates a hostile, intimidating, or offensive work environment, including:

  • Unwelcome sexual advances;
  • Requests for sexual favors;
  • Verbal or physical contact of a sexual nature;
  • Offensive slurs or jokes;
  • Name calling or insults;
  • Threats; and
  • Offensive images and objects.

Ailes blatantly denied Carlson’s allegations. The parent company of Fox News, 21st Century Fox, issued a statement supporting Ailes, but stating that it is taking the allegations seriously and had initiated an internal review of Carlson’s claims.

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The Investigation

Ailes is no stranger to these sorts of charges, having been accused of sexist behavior in the past. Shortly after Carlson filed her lawsuit, more than a dozen additional women, six of whom have been identified, have contacted Carlson’s attorney, Nancy Erika Smith, with detailed claims of sexual harassment by Ailes over the last 25 years, dating back as early as his days as a producer on “The Mike Douglas Show” in the 1960s.

Viewed together, the allegations of the women who have come forward depict Ailes as a boss who openly expected sexual favors from female employees in exchange for job opportunities. Included among the women who have accused Ailes of sexual harassment are a former Republican National Committee adviser, a media consultant, a former TV producer, and three former models.

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Knowing how to handle a sexual harassment claim when it arises is essential to continuing operations as usual and keeping your company in business. The most important thing an employer can do when a sexual harassment claim is made is to take it seriously. While you might not want to think that your employees could be capable of offensive or harassing behavior, you need to keep an open mind. If you dismiss a claim or fail to investigate it, you’re asking for a lawsuit. Hold off on forming any conclusions or expressing any opinions until a formal investigation has been conducted.

As the Carlson case shows, it can be very difficult for an employee to come forward with an allegation of sexual harassment, due to feelings of embarrassment, vulnerability, or fear of reprisal. In the event that an employee finds the courage to come forward, it’s important for you as an employer to be understanding, and treat your employee with compassion and respect. Remember, the person coming forward is a victim who already believes that he or she has been mistreated. The more that an employee can see that you’re taking the allegations seriously, the more likely you are to be able to resolve the problem without it escalating to a government investigation or a costly lawsuit.

In investigating a complaint, you need to be sure to talk to all parties who were allegedly involved, and keep careful records of these conversations. These cases can often be a “he said, she said” situation, and it’s important to gather as much concrete evidence of what happened as possible. As we saw in the Carlson case, an investigation often leads to other alleged victims coming forward. When one person finds the courage to speak up, it’s not uncommon for others who were previously too frightened to say anything to follow suit.

Under no circumstances should you engage in any behavior that may appear to be retaliatory. Punishing an employee for complaining about harassment or discrimination is not only unacceptable, it’s also illegal. Ailes’s alleged retaliatory actions against Carlson for complaining about his advances and the culture at Fox News are a major piece of Carlson’s lawsuit.

While Carlson has only named Ailes in her suit, and not Fox New or 21st Century Fox, it’s important to note that employers can be held legally liable for the actions of employees and supervisors in cases of workplace sexual harassment if it is shown that the employer knew or should have known that the harassment was occurring and did not take reasonable action to stop it. In California, there is a strict liability standard, meaning employers are liable when supervisors sexually harass employees, even if the employer took reasonable measures to prevent it.

Prevention

Employers have an obligation to prevent sexual harassment. First and foremost, all businesses should formulate a clear anti-harassment policy and make sure it is communicated to all employees through an employee handbook. Employers should consult with an attorney to ensure that the company’s policies comply with all federal, state, and local laws.

Sexual harassment training is also essential for all employees on an annual basis. This is particularly the case for supervisors and managers, who can expose an employer to potential liability for harassing behavior. All employees should understand what constitutes sexual harassment, and that managers and supervisors will maintain a zero tolerance policy when it comes to harassment in the workplace. Under California law, all businesses with 50 or more employees are required to provide sexual harassment training to supervisory employees within six months of hiring, and then once every two years thereafter.

Finally, employers need to establish a clear process for submitting and investigating complaints if harassment does occur. All complaints must be taken seriously. Employees need to know that they have rights and recourse for inappropriate behavior, and that they won’t be retaliated against for speaking up.

Although retaliation is illegal, it is all too common. Carlson is simply the latest in a long line of sexual harassment victims who claims to have been retaliated against for speaking out against the improprieties in her workplace.

The Fallout

While 21st Century Fox initially stood by Ailes, it appears that his job may now be in jeopardy. On June 18, 2016, it was reported that Rupert Murdoch and his sons Lachlan and James, the top executives at the company, “have settled on removing” Ailes due to the ongoing investigation into Carlson’s sexual harassment charges.

The Murdochs seemed to be split on when they wanted Ailes out. According to reports, James Murdoch was pushing for Ailes to be given the choice this week to resign or face termination. Rupert and Lachlan Murdoch, on the other hand, were reportedly of the view that any action should wait until after this week’s Republican National Convention.

Their reasons, however, for wanting Ailes out seemed to become clearer on July 19, 2016, when 21st Century Fox sources confirmed that star news anchor Megyn Kelly had told investigators that Ailes sexually harassed her 10 years ago, when she was a correspondent for Fox News.

The announcement was a bombshell that appeared to all but seal Ailes’s fate. Later that day, it was reported that Ailes was negotiating his departure from the network. On July 21, 2016, Ailes resigned from Fox News, effective immediately.

How to Handle Sexual Harassment Allegations in the Workplace

If you don’t currently have a clear procedure in place for dealing with workplace harassment complaints, including but not limited to sexual harassment claims, you should establish one now. It’s crucial to educate yourself on what kind of behavior is illegal, and in what circumstances you as a business owner can be held liable for the actions of your employees.

Having an established complaint procedure will not only help things go more smoothly if claims arise, it will also reinforce to your employees that harassment in any form is not to be tolerated and will be taken seriously.

A sexual harassment investigation or lawsuit is not something that you should attempt to handle on your own. An attorney experienced in workplace harassment cases can guide you through the process, and ensure that you are complying with all applicable laws and cooperating with any agencies or courts involved.

If you are facing a sexual harassment claim by an employee or have concerns about implementing effective sexual harassment procedures in your office, the attorneys at Pasha Law are here to answer your questions.

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