Ideas for Ending Sexual Harassment in the Workplace

Tracey Spicer, an Australian broadcaster and author, asked members of her vast social media network to suggest ways to end sexual harassment in the workplace.

And she got some interesting responses that are worthy of consideration here. The list was published recently by the web site of an Australian lifestyle network called NineHoney. 

What follows are just a few of the ideas. Those that I deem particular worthy are in bold:

  • Clearly define what comes under the umbrella of sexual harassment;
  • Teach children and parents about consent as part of a school program;
  • Re-frame the concept of what it is to be a good man – teach men to be better bystanders;
  • Empower HR Departments to take action if women are at risk;
  • The board and top executives should commit to a zero tolerance policy;
  • Sexual harassment should be a standing agenda item at board/management meetings
  • Companies should file a mandatory annual report of policies, sexual harassment instances and penalties. In Australia, the report would be filed with the Workplace Gender Equality Agency. There is no equivalent public agency in the United States though the EEOC is responsible for implementing federal laws governing sexual harassment;
  • Permit employees to report sexual harassment through an “external” or outside “portal”;
  • Track repeat offenders over time, through multiple workplaces;
  • Consider making non-disclosure agreements legally void;
  • Create a universally accepted protocol for reporting sexual harassment, with protection for whistle blowers;
  • Legislate criminal charges for company directors who cover up sexual harassment.
  • Extend the statute of limitations for filing a civil case alleging sexual harassment.
  • Consider an inquiry, summit or commission to assess the scale of the problem and consider solutions.
  • Access to free support, counseling for victims.

Spicer, who is herself a victim of sexual harassment, has launched an investigation of the problem in Australia and has compiled accounts of sexual harassment from more than 400 sexual harassment victims. She recently reported that she is now the target of death threats.

Even Likeable Sexual Harassers Don’t Belong in the Senate

A typical reaction to sexual harassment is to diminish and trivialize the behavior when the perpetrator is someone we value and the victim(s) does not sufficiently resemble the Virgin Mary.

Sen. Al Franken, D-MN, is being urged to reconsider his decision to resign from the U.S. Senate in the wake of accusations by a half-dozen women that he groped them or tried to forcibly kiss them. Several high profile Democrats and so-called feminists are urging Franken to remain in office and undergo a Senate Ethics Committee review of his conduct.  They argue that he supports women’s rights. He’s a valuable Democrat. A top fund raiser. He’s funny.  To paraphrase Stuart Smalley, people like him.  And, of course, some Republicans are far worse and they aren’t being pushed out. That’s all true but … so what?

Remember when powerful feminists overlooked decades of credible accusations of predatory abuse of women (and worse) by former Democratic President Bill Clinton. He too was a staunch supporter of women’s rights.  Clinton denied it all, of course, until he was forced to admit to nine tawdry encounters with an unpaid White House intern in the Oval Office. She kept his DNA on her clothing as a souvenir.

Sexual harassment will not stop until society adopts a “zero tolerance” policy that applies to the people we like.

Ratchet Up the Consequences for Employers that Ignore Sexual Harassment

A perusal of recent headlines shows that companies will place their heads firmly in the sand to keep harassers on the payroll if the company is focused on short term profits.

Despite potential ruinous risk to reputation, costly turnover, lost work time and higher health care costs (among other things) the fact of the matter is that many employers  tolerate sexual harassment when the harasser is valuable to the organization. In some ways, the on-going wave of public sexual harassment incidents is similar to the problem with unsafe cars manufactured in the United States in the 1960s. It was cheaper for car makers to settle lawsuits out of court than to manufacturer safer cars.

In February, 21st Century Fox renewed Bill O’Reilly’s contract  knowing that he was in the process of settling a sexual harassment complaint by a news analyst, who eventually received a $32 million settlement.  O’Reilly, then  the most-watched figure on cable TV, had earlier settled several other sexual harassment claims out of court.

Producer Harvey Weinstein had several Oscars to his credit but he was a notorious bully for years, not to mention sexual predator (or worse). He also was known to engage in physical violence at the office on occasion.

TMZ says  Weinstein’s 2015 employment contract states that if the Weinstein Company had to pay settlements for his sexual or other misconduct, he must reimburse the company and pay an escalating set of fines: $1 million for the fourth and any subsequent instance.

Congress must insure employers that ignore evidence of sexual harassment face consequences that make it more expensive for them to do nothing than to act.

The complacency of Fox and the Weinstein Company demonstrates how little employers today fear the American legal system, which they count on to  work on their benefit. Typically, employers retain  human resource officers and legal staff who are trained to protect the company from sexual harassment complaints. Courts permit employers to make the legal process as long and difficult as possible for the victims, who often have few resources because they were driven out of their jobs by the employer and the harasser.

A recent development has made it even easier for employers. When the EEOC finds there is reasonable cause to believe the employer is guilty of sexual harassment, it offers a free and confidential mediation program whereby the employer can settle the matter – usually for peanuts – without even having to go to court. And it’s all secret!

Both Fox and The Weinstein Company knew or should have known of their employee’s abusive behavior but apparently they concluded the benefit of retaining the abuser outweighed the cost of paying the occasional out-of-court settlement.  What is needed is serious consequence for employers who ignore evidence of sexual harassment. And by that I mean serious.  A company that is making a profit of X billion should be ordered by a court to pay a percentage of its profit in damages. In that way, society will insure that employers take sexual harassment seriously.

More Self-Inflicted Wounds? Fox Hit With Race Discrimination Lawsuits

It was humming along, the major cable news network in America, raking in billions in profits.

Now Fox News  has lost (forced out) its visionary chief executive officer, Roger Ailes, and its top star,  Bill OReilly, both accused of sexual harassing female subordinates for decades.  Fox  paid  Ailes and OReilly tens of millions in severance to leave, not to mention millions in damages to their alleged victims.

And now Fox is reeling from a second wave of discrimination complaints – this time involving race discrimination. A Fox News spokesperson has denied the claims and said the network will “vigorously defend these cases.”

Two black women who worked in the Fox News payroll department, Tichaona Brown and Tabrese Wright, filed a race discrimination lawsuit   in New York state court on March 28 alleging  that Fox Controller Judith Slater, who was fired by Fox on Feb. 28, subjected “dark-skinned employees” to racial animus.

Eleven past and present Fox workers joined the lawsuit Tuesday, complaining that they were  humiliated, paid less than white coworkers and passed over for promotions. Continue reading “More Self-Inflicted Wounds? Fox Hit With Race Discrimination Lawsuits”

Bill O’Reilly and the Market-Driven Approach to Halting Sexual Harassment

Note: Bill O’Reilly was fired by Fox News on 4/19/17 after an advertiser revolt stemming from pubilcity surrounding his settlement of five sexual harassment lawsuits. “After a thorough and careful review of the allegations, the company and Bill O’Reilly have agreed that Bill O’Reilly will not be returning to the Fox News Channel,” 21st Century Fox, the parent company of Fox News, said in a statement. The departure of O’Reilly, who was Fox’s biggest money-maker, is yet another example of the devastating risk that employers take when they tolerate an abusive workplace.  More than 50 advertisers withdrew from his prime-time show, and 21st Century Fox asked a law firm to investigate a complaint from a woman who said O’Reilly dropped efforts to make her a contributor in 2013 after she turned down his invitation to visit his hotel room

In one sense,  Bill OReilly and Fox News work for the corporations that buy commercial time on”The O’Reilly Factor.” There would be no O’Reilly Factor without commercial advertising.

It is significant that  more than 20 corporate advertisers withdrew their advertising dollars from The O’Reilly Factor after the New York Times reported that Fox and O’Reilly paid $13 million to five women to settle allegations of sexual harassment.  This is evidence of a simple but effective strategy to address human rights abuses in the workplace.  Corporations promise to only purchase products from employers that maintain highly ethical, humane standards in the workplace.

This  “market driven model”  has been surprisingly successful in other contexts.

For example, beginning in 2011, members of the Fair Food Standards Council,  including McDonald’s and Walmart, pledged to only buy tomatoes from farm growers who implement a human rights-based code of conduct that is monitored and enforced by the Council.  Judge Laura Safer Espinoza a retired New York State Supreme Court justice who is director of the Council, told the EEOC in 2015 that the market-driven model had  in “four short years” ended decades of impunity for perpetrators of sexual harassment and sexual violence Florida’s tomato growing industry. Continue reading “Bill O’Reilly and the Market-Driven Approach to Halting Sexual Harassment”

Fox News: The Cost of Sexual Harassment

Fox News has gone from being the stolid and leading voice of conservatism in the United States to a network wracked with turmoil.

This week, it was announced that Fox  is losing it’s leading on-air female personality, Megyn Kelly, 46, who is moving to NBC. Her 9 p.m. show, “Kelly File,” was the second-highest rated in cable news. Kelly reportedly eschewed an offer from Fox for more than $20 million per year to extend her contract and stay.

Fox’s turmoil began last Fall when its parent company, 21st Century Fox, paid $20 million to former Fox News anchor Gretchen Carlson to settle a sexual harassment suit filed against Roger Ailes, 76, who led the Fox News network for 20 years. Since then, more than 20 former and current female employees at Fox News, including Kelly, came forward to complain about sexual harassment by Ailes dating back to the 1960s.

Whether or not sexual harassment spurred Kelly’s departure, it played a role in destabilizing the network and made Fox appear vulnerable to other networks in search of top talent.

Clearly, 21st Century Fox was the major loser in this debacle.

At the end of the day, 21st Century Fox’s losses will be staggering. Continue reading “Fox News: The Cost of Sexual Harassment”

Outfoxed: Carlson Settles for $20 Million & Apology

Former Fox News Anchor Gretchen Carlson  has received among the largest payouts in history  – $20 million – to settle a sexual harassment case.

Ironically, the case was settled not by the defendant, former Fox News chairperson Roger Ailes, but by his former employer, 21st Century Fox, the parent company of Fox news.  Ailes, 76, won’t pay a dime. (Not only that,  Ailes received a $40 million payout from Fox when he left his job under pressure in July.)

It is speculated Tuesday that Carlson, a former Miss America,  secretly tape recorded Ailes, whom she alleged refused to renew her contract after she refused to have sexual relations with  him.

The largest sexual harassment award in history is believed to have occurred in 2011 when a federal jury in Tennessee awarded $95 million to Ashley Alford, a young employee who was  sexual  harassed and physically assaulted by a supervisor  at the rent-to-own company, The Aaron’s Inc. The award included $15 million in compensatory damages and $80 million in punitive damages. U.S. District Court Judge J.  Michael Reagan subsequently reduced  the amount the jury awarded Alford on the sexual harassment claim from $4 million to $300,000 pursuant to a federal statutory cap. on damages under Title VII of the Civil Rights Act. Judge Reagan also vacated $50 million of the punitive damages award. That still left Alford with about $41 million.

In addition to the monetary award, 21st Century Fox issued a press release stating:  “We sincerely regret and apologize for the fact that Gretchen was no treated with the respect and dignity that she and all of our colleagues deserve.”

Meanwhile, two other women at Fox reportedly were offered settlements after complaining about sexual harassment.

Carlson’s complaint appears to have prompted the sudden departure of Fox personality Greta Van Susteren from the network on Tuesday. Susteren had publicly defended Ailes and accused Carlson of retaliating against Ailes after  being fired due to poor ratings.

Carlson received little support generally from her former Fox colleagues. In addition to Van Susteren, more than a dozen top personalities at Fox News including Sean Hannity, Neil Cavuto and Kimberly Guilfoyle defended Ailes against claims of sexual misconduct.

Roadmap to Stop Harassment in the Workplace

In the wake of the controversy surrounding Fox CEO Roger Ailes, it is worth reviewing how to handle the problem of  harassment in the workplace.

Ailes, 76,was recently forced out of his position at the television network that he helped found because of complaints of sexual harassment that allegedly dated back for decades.

The EEOC created a select task force in January 2015 to study the general problem of workplace harassment, including sexual harassment. The task force, which included experts from around the country, issued a report last month recommending that employers actively promote an organizational culture of respect and civility.

The task force recommended:

  •  Employers should have a comprehensive anti-harassment policy that prohibits harassment based on any protected characteristic, and which includes social media considerations.
  • The anti-harassment policy should include details about how to complain of  and how to report harassment, must be communicated frequently to employees, in a variety of forms and methods.
  • Employers should provide reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
  • Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
  • Employers should periodically “test” their reporting system to determine how well the system is working.
  • Employers should devote enough resources to insure that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.

Specific details about the report are available on the EEOC web site.

Almost a third of the 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment, including charges of unlawful harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion. And that is the tip of the iceberg. The EEOC reports that three out of four individuals who experienced harassment did not talk to a supervisor, manager, or union representative about the harassing conduct because they feared disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.

Penalty for Sexual Harassment Rarely Fits The ‘Crime’

Note: News outlets reported July 21, 2016 that Ailes will receive a $40 million buyout from Fox and a new job as an “advisor” to the network.

What should the penalty be for a manager who allegedly abused his power for decades by sexually harassing female subordinates?

Disgrace? Dismissal? Banishment?

Well, that does not appear to be what is happening in the case of Roger Ailes, the chief executive officer of Fox News who allegedly sexually harassed female subordinates since the 1960s.

According to the Drudge Report, 21st Century Fox, the corporate parent of Fox News, is negotiating an exit package with Ailes that includes a $40 million buyout. Other outlets report Fox wants to keep Ailes on the payroll as a consultant. In other words, the consequences of Ailes’ allegedly abusive behavior may consist of a fat check and a change of job title.

One reason that sexual harassment remains epidemic in the American workplace is the lack of any serious consequences for the abuser.  Victims of sexual harassment lose their dignity, sense of trust and  peace of mind. Many lose their jobs and financial security. In the rare instance that a sexual harasser is held to account, the consequences range from a pat on the hand to a quiet suggestion that it is time to move on.

Women in the workplace are well aware they lack any real protection from sexual harassment and this knowledge understandably deters them from reporting the problem.

Ailes woes began a few weeks ago when Gretchen Carlson, a former news anchor, filed a lawsuit claiming that Ailes fired her because she refused to have a sexual relationship with him. Ailes, 76, vigorously denied the accusation. Some observers (including former co-workers) dismissed Carlson’s complaint as a parting shot by an aging beauty queen whose afternoon TV show suffered from poor ratings.  (Fox is presently trying to move Carlson’s lawsuit out of federal court and the public eye into a closed-door arbitration proceedings.)

The problem for Ailes arose because other women began complaining about his allegedly abusive behavior.  Carlson’s attorney, Nancy Erika Smith, said that at least a dozen women contacted her firm after Carlson’s lawsuit was filed complaining of similar harassment by Ailes. The final blow appears to be a story by New York Magazine stating that Fox News star Megyn Kelly told a law firm hired to investigate Carlson’s complaint that Ailes had sexually harassed her a decade ago.

Fox had no choice but to do something.  When an employer receives a complaint that a manager is sexually harassing a subordinate, the employer is on notice and must act to prevent future harm (including retaliation) or it will risk serious damages.  However, the law does not require the employer to actually penalize the harasser.  So Fox’s game plan appears to be this – remove Ailes from his supervisory position, while keeping him happy and on the job.

Sexual Harassment Victims Forgotten in U.S. Supreme Court Appeal

CRSTOne of the most outrageous court rulings in modern history may be the dismissal of a sex discrimination lawsuit filed by hundreds of female truck driver trainees against CRST Van Expedited Inc., which was then awarded  $4.7 million in attorneys’ fees.

On appeal, the U.S. Court of Appeals for the Eighth Circuit in Missouri upheld the lower court’s dismissal of all but two of the plaintiffs but vacated the attorneys’ fee award. One  of the surviving plaintiffs dropped out of the litigation and the other secured an out of court settlement of $50,000.

This week, CRST asked the U.S. Supreme Court to reinstate the attorneys’ fee award.

The case was a complete train wreck for the EEOC, which initially represented a class of 270 women. Some of the plaintiffs were subject to shocking and violent incidents of  sexual harassment during training runs with CRST male drivers. When they called CRST to complain about the harassment, they were told they had to remain on the truck overnight with the harasser.

After almost six years of litigation, Iowa Chief Judge Linda R. Reade abruptly dismissed the case in its entirety and awarded $4.7 million in attorney fees to CRST.

The 67 alleged sexual harassment victims were denied justice because the EEOC or the U.S. District Court of Iowa (or both) screwed up. Will taxpayers now be forced to pay CRST’s legal bills?

Continue reading “Sexual Harassment Victims Forgotten in U.S. Supreme Court Appeal”