Recently Fox News agreed to pay $20 million to its former Fox & Friends anchor Gretchen Carlson to settle a sexual harassment lawsuit against its former CEO, Roger Ailes. The payment came with an unprecedented public apology as well. Ailes was at the helm at Fox News for more than 20 years in what is now being reported as a long reign of misogyny involving at least two dozen individual complaints of sexual harassment. Whether or not you’re a fan of Fox News, there are lessons to be learned about how the network handled the case.
Putting personal blame aside, Amy Beckstead, partner at Beckstead Terry PLLC in Austin, says this workplace sexual harassment case is an important lesson in having the right legal documents in place, particularly as it relates to arbitration agreements.
“The arbitration agreement Carlson signed required her to arbitrate claims arising from her written employment agreement and her employment generally, but it did not specifically reference a corresponding agreement to arbitrate claims she may have against other Fox employees, such as Ailes,” she points out. By not including this language, Beckstead adds, Carlson was able to sue Ailes himself, which opened the case and all its sordid details to the public. It also left the door open for Carlson to pressure Fox News into “giving Ailes the boot,” she adds. “If Fox had drafted its arbitration agreement differently, we may have never heard anything about this.”
Instead, Beckstead says, Carlson could have been compelled to arbitrate her complaint against Ailes through AAA arbitration, which is private dispute resolution (not involving criminal misconduct) through arbitrators who are part of the American Arbitration Association (AAA).
“For employers who are unsure whether their arbitration language is strong enough, it’s important to review employment documents and revise them if necessary,” she adds.
Another important lesson in this case has to do with company culture. What should HR do when a high-level executive breaks the rules? How tempting is it to look the other way? Beckstead explains the companies that avoid these situations in the best possible way have one thing in common: empowerment at all levels of the organization.
“It’s important to tell employees that it’s OK to raise your hand if you’re experiencing what you feel is harassment or discrimination and then back up that assertion with policies and procedures that make employees feel safe to do just that,” she says.
Those practices, policies and procedures should generally include:
- Starting at the top: ensure that leadership is committed to diverse, inclusive, and respectful workplaces where harassment is not tolerated.
- Within company anti-harassment policies, a broad definition of harassment and discrimination to include anything that makes the victim uncomfortable (not just the legal definition of harassment and discrimination), along with instructions to report the conduct to HR or a supervisor/manager as soon as possible.
- Assuring employees making complaints or providing information related to complaints that it is a protected activity and they will be protected against retaliation, as well as assuring confidentiality, to the extent possible.
- A clear and concise explanation of complaint resolution procedures so that all parties know what to expect and that the process is prompt, thorough, and impartial.
- Assuring that the company will take prompt and proportionate corrective action when it determines harassment has occurred.
- Consequences for HR or supervisors/managers who do not take the reports seriously, act on them quickly or take appropriate actions to prevent retaliation.
- Training employees and managers on harassment and discrimination: how to complain and how to handle complaints that are received.
Looking for a place to start in drafting an effective workplace anti-harassment policy? The Society for Human Resource Management (SHRM) has some helpful sample language for drawing up a sexual harassment policy on its website. The EEOC also recently issued its Task Force Report on Harassment in the Workplace in June 2016, which provides employers substantive advice on creating anti-harassment and anti-discrimination policies and procedures that work.
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