I read an article in the New York Times a few days ago about the Roger Ailes-Gretchen Carlson sexual harassment lawsuit, and the allegations that are coming out are pretty shocking. It seems that a pervasive culture of sexual harassment existed at Fox News, with a number of female employees alleging that they were propositioned for sexual favors and retaliated against if they said no. It will be interesting to see if the network can continue to attract talented female employees in light of these allegations.
One person who will not be working at the network is Roger Ailes. The sexual harassment allegations apparently had some truth behind them, and Ailes, the network’s founder, has been forced to step down. I reviewed the complaint filed by Gretchen Carlson, and here are some things that employers can learn from it:
1. A “he-said” “she-said” case can be dangerous. It seems like a lot of the evidence in Carlson’s lawsuit will come from her own testimony. Many employers may think that a “he-said” “she-said” lawsuit like this is not a big deal. This is wrong. A “he-said” “she-said” case could be expensive and embarrassing for an employer. For one, it is usually difficult to have these cases dismissed either at the lawsuit’s outset or in summary judgment (i.e. the stage of the case right before trial where a judge reviews all of the evidence to see if both sides have a case). Both parties have evidence to support their claims, so a court will probably allow the case to proceed to trial.
During trial, anything can happen. A bad day on the witness stand could doom an employer, even if it is in the right. Even if the employer prevails, going to trial is expensive, and the allegations made during trial, even if ultimately found not to be true, could still harm the employer’s reputation.
2. Investigate sexual harassment complaints immediately. Carlson’s complaint alleges that Carlson complained about the way she was treated by Ailes and other Fox News employees in the years prior to her lawsuit. From what I have read, it does not look like there was any investigation into these complaints. This was a bad move on Fox’s part. As we have discussed, an employer should immediately investigate all allegations of sexual harassment. Failure to do so may make it appear as though the employer condones the behavior or is indifferent to it, both of which could leave the employer vulnerable to a lawsuit.
3. Have a sexual harassment policy in place and teach it to employees. It is unclear whether Fox News had a sexual harassment policy in place, but if it did, Carlson’s lawsuit makes it seem as though employees were unaware of it or did not abide by it. Employers should make sure that they have up-to-date sexual harassment policies in place. If you have not updated your policy in awhile, consult with an attorney to do so, as there have been some significant changes in the law over the past couple of decades. Additionally, hold annual sexual harassment training sessions, and make sure your employees are aware of your sexual harassment policy. Even if an employer is eventually sued for sexual harassment, having an updated policy in place and regular sexual harassment training sessions will serve as evidence that the employer did not condone sexual harassment.
4. Have more than one contact person for sexual harassment allegations. In most companies someone in the HR department is the person to whom all sexual harassment complaints are referred to. However, what if that person is accused of sexual harassment? From some of the articles I have read, it seems like nothing could be done to effectively discipline Ailes because of his control over Fox News. Employers should try to avoid this and appoint multiple people who can independently investigate sexual harassment allegations.
5. Don’t retaliate. Carlson claims she was fired because she would not provide sexual favors for Ailes. This type of retaliation is a textbook case of sexual harassment and could subject an employer to punitive damages. While most employers know that such behavior is wrong, many may not know that an employer cannot punish an employee for making a false sexual harassment claim unless the employer can prove that it was done solely for the purpose of harming the company. This is not easy to do, so employers should just refrain from retaliating against an employee for making a sexual harassment claim, no matter how badly they may want to.
We have written at length about sexual harassment issues, and you can read some of these blog posts by clicking here, here, and here. Contact us at 312-604-9125 or mdicianni@ancelglink.com if you have questions about your sexual harassment policy.
