Whether they want to report it or not, one piece of news is spreading rapidly: Gretchen Carlson, a former host at Fox News (and, yes, a former Miss America) has sued Fox News CEO Roger Ailes for sexual harassment and retaliation. Let me say this at the outset: I am not going to try to evaluate who has the stronger case, or who I do or do not believe. We have for that–unless the case settles. “OK”, you might be wondering, “what’s your point then?” Here it is: even this early on in the case, all of us, employers and employees alike, can learn a lot from this situation. Let’s do that– after the jump…
(image from freepressjournal.in)
To learn from this story, we at least need the nutshell version. Here it is: Gretchen Carlson is the former host of “The Real Story with Gretchen Carlson” and former co-host on “Fox & Friends”. Many regarded her as one of Fox News Channel’s top anchors. Ms. Carlson sued Fox CEO Roger Ailes, for sexual harassment, retaliation and wrongful termination. Ms. Carlson alleges that Ailes made “sexually charged comments” to her, “ranging from lewd innuendo, ogling and remarks about Ms. Carlson’s body to demands for sex as a way for her to improve her job standing”, and had directed sexist comments about her in public. Ms. Carlson also alleges that her co-host, Steve Doocy also sexually harassed Ms. Carlson and also made sexist, derogatory comments to and about Ms. Carlson, sometimes on the air.
On June 23, 2016, Fox News terminated Ms. Carlson’s contract. Ms. Carlson says the termination was retaliation for her complaining about Mr. Ailes’ behavior and rebuffing his advances. Fox News denies the allegations, contending that it terminated her contract because her ratings were poor. Ms. Carlson worked for Fox News for 11 years and was given many different opportunities there and even asked in writing for other opportunities, stating she would love to stay at Fox. The network also contends that Ms. Carlson never filed any complaints. Ms. Carlson argues back: No mention was made of ratings in their decision, or at any other time, and, in fact her ratings appeared to have remained quite high. Ms. Carlson call Mr. Ailes’ on his behavior on a number of occasions, and according to her attorneys, did file complaints, but would not say more, now that a lawsuit is pending. What a mess!
Most of us, unlike Fox News or Gretchen Carlson, cannot afford this type of lawsuit, and do not want to be mired in this type of muck. What can we learn so we might avoid such a scenario?
If you are an employer, here are some starters:
- Investigate allegations as soon as you know or have reason to know about them. It appears that Ms. Carlson at the very least complained to Mr. Ailes himself. Whether or not she initiated a formal complaint with HR, Fox News may well have had reason to know about sexual harassment allegations well before this lawsuit. (Fox News did settle a sexual harassment case from 2004, so this is not an entirely new experience for the network.) If there was any indication that Mr. Ailes, Mr. Doocy or anyone else sexually harassed anyone, an internal investigation would have allowed Fox News the opportunity to get in front of the issue and prevent litigation in general and this mess in particular.
- Implement a complaint procedure, communicate it clearly to your employees, and apply it consistently. Some employees do not say anything because there either is no complaint mechanism, or if there is one, they don’t really know about it. Also, while having a complaint procedure is important, it does no good if the employer never applies it or does not apply it consistently.
- Include in your complaint procedure more than one contact person and an alternative if the alleged perpetrator is the owner, CEO or someone similar. Presumably Mr. Ailes is accountable to someone, though he may or may not have felt that way. Could Ms. Carlson have felt that complaining to HR, who probably answers to Mr. Ailes, would not have produced a constructive result?
- Consider using an outside consultant for allegations involving the top officer or owner of the company. See my comments in the point above about complaining to H.R. about behavior by the CEO. In such a situation the company may not be as effective in investigating its CEO as an outside firm may be.
- Don’t retaliate! First, this alone is illegal. Second, even when an underlying claim is dismissed, a plaintiff wins at least as much on a retaliation claim as s/he would have on the underlying claim, if s/he can prove that his/her employer took any type of adverse action against him or her as retaliation for the claim.
Now, I’m going to depart from my usual practice and ask, what can employees learn?
- Report sexual harassment. When an employee doesn’t complain, but later sues, an employer’s first reaction is often to cite the lack of complaints by the accuser, and call his/her credibility into question.
- Keep a log of incidents, and document any complaints and the response and/or lack thereof. If your employer says you never complained and you have your own log that says you did, and that indicates what if any response you received that is a very powerful tool.
- Be very clear that you believe you are being harassed and that you object to the behavior. Many employers or managers will state that the complaining employee either said s/he didn’t want any action taken or didn’t really indicate s/he was bothered by the behavior.
- If you are worried about retaliation, speak with local counsel. Attorneys often provide complementary consultations and can usually give you an idea of how strong a your case appears, and what options may be available to you. I can’t tell you not to be afraid of retaliation or otherwise how to feel. I can tell you though, that if you are being harassed and you do not say or do anything the behavior probably will continue. If you truly do not feel that you can report the behavior or take any action while you are working for that particular employer, you may need to fast-track your search for other employment.
Obviously these are not exhaustive lists. There’s much more we can learn, and that we’ll probably continue to learn from them over time. This should be enough to get us started though.
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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