Roger Ailes & Sexual Harassment – The Importance of a Solid Sexual Harassment Policy
Fox News chief Roger Ailes is currently embroiled in a sexual harassment lawsuit filed by former Fox News anchor Gretchen Carlson. Carlson, who had hosted “Fox & Friends” and “The Real Story with Gretchen Carlson” alleges that her contract was not renewed by the network and thus she was let go on June 23, 2016 because she would not have sex with Ailes. Carlson gave several examples of the harassment in her complaint, including Ailes allegedly saying “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.”
Ailes denies the claims in a statement, claiming the action is nothing more than a “retaliatory suit” due to the network failing to renew her show because of “disappointingly low ratings.”
Even more troubling is that since the suit was filed, more than a dozen other women have contacted Carlson’s attorney and provided detailed allegations of sexual harassment by Ailes going back to the 1960s when he was a producer on “The Mike Douglas Show.”
Sexual harassment remains stubbornly common in the workplace. A survey of 2,235 full-time and part-time female employees found that one in three women between the ages of 18-34 has been sexually harassed at work at some point in their lives. With an ever-growing female workforce, these types of incidents are likely to remain an issue in the workplace.
This high profile incident should serve as a reminder to business owners about just how important it is to have a workplace sexual harassment policy in place to try to prevent these sorts of sickening incidents. Indeed, workplace harassment costs businesses millions of dollars every year through reduced productivity, low employee morale, and, of course, costly lawsuits. That is why it is so important to educate your employees on the various types of workplace harassment, and that you as a small business owner effectively communicate and enforce a zero-tolerance harassment policy.
First it is critical to know what the legal definition of harassment is. Harassment includes any physical or verbal conduct demonstrating hostility toward a person because of his or her age, sex, race, color, religion, national origin, disability or other “legally protected status.”
Sexual harassment is characterized by unwanted sexual advances or sexually explicit statements, pictures, or gestures. A supervisor or manager who subjects an employee to a positive or negative personnel action in exchange for accepting or refusing sexual advances is also sexual harassment. You cannot reward someone for engaging in sexual conduct nor punish someone for refusing to. Additionally, when a person is subjected to negative treatment due to their gender, that is also considered sexual harassment, and that includes instances involving members of the same or opposite sex.
Create a strong anti-harassment policy
The Equal Employment Opportunity Commission (EEOC) strongly urges every employer to develop and distribute a written policy on harassment. Crafting the policy is only the beginning. In order for it to be effective, it must be clearly communicated to all employees. The best way to do this is to provide every employee and manager a copy of the company’s anti-harassment policy at the time of hire and again once a year after they join your company.
It is best practice to obtain a signed written acknowledgment from each employee whenever they receive a copy of your anti-harassment policy. This is what we call “covering your ass” in that, in the event there is ever an issue with a particular employee, you can simply reference their employee personnel file to establish proof that the policy was properly distributed and your employees were on notice as to the policy.
So what is in this policy?
Your anti-harassment policy should explain in clear terms the type of conduct that is prohibited. The policy should state that your company has zero-tolerance for any type of harassment, whether based on sex, race, color, religion, national origin, age, disability and/or any other legally protected status. Additionally, you may want to prohibit harassment on the basis of other characteristics even if they are not protected by law, such as sexual identity or gender expression.
The policy must be clear to include anyone and everyone in the workplace, including executives, managers, coworkers and even non-employees. You will want to include definitions and examples of harassment as well as an overview of employee rights in the workplace.
And critically, the policy must inform employees of the complaint procedure, and emphasize their duty to report harassment. Keep in mind you will want multiple avenues for reporting the harassment – consider how problematic it would be if the only person you designated to take harassment complaints was harassing someone. Where does that harassed person go to file an internal complaint? You will need to have an option for that contingency. In order to avoid liability, the policy should encourage complaints and remove potential obstacles from the complaint process.
You will also want to have regular sexual harassment training with your staff. This will further ensure that your managers and employees are fully aware of the policy and procedures relating to sexual harassment. This will further bolster your claims that you took reasonable steps to prevent workplace harassment in the event of a lawsuit.
And perhaps most importantly, if you do get a complaint, take it seriously and follow your own procedures. A policy is only as good as the people who enforce it. If an employee makes a complaint about someone in your organization, take it seriously, launch a fair and impartial investigation, and discipline the offender in accord with the zero-tolerance principles espoused in your anti-harassment policy. In this way, you may be able to foster a working environment that is free of unwanted harassment and you may also avoid liability in the event of a lawsuit naming your company.
Tim LeFebvre, Esq.