Chances are, if you are ever sued for harassment, it won’t take a $20 million dollar settlement to make it go away. The news is out today that Fox News Will Pay Gretchen Carlson $20 Million To Settle Sexual Harassment Suit. Did we say $20 million? That is just for one of the plaintiffs!
There are a few things that distinguish this case: The prominence of all the parties involved; the podium in the public sphere that all parties share; and the egregiousness of the alleged behavior. Recently, the New York Times talked about the case but cautions employers that Fox should not be viewed as a one-off: Sexual Harassment Training With Roger Ailes
The details both women lay out portray Fox as a place where sexual harassers roam free, grabbing or ogling whatever they fancy, with consequences brought to bear only on the victims who speak up.
But it would be wrong to think of Fox as an anachronism or even an outlier. Sexual harassment permeates the economy — it makes up an enormous share of complaints to workplace watchdogs and crops up in both low-wage restaurant jobs and high-paid tech offices. Fox is, in many ways, a typical workplace.
When asked if they have experienced unwanted sexual attention or coercion at work, 40 percent of women said yes.
Indeed, one employer’s woes can serve as an object lesson in “what not to do” for other employers. Some of our favorite employment law attorney bloggers offer their assessment and their take-aways for employers:
- Jon Hyman, Ohio Employer’s Law Blog: I thought we were beyond blaming the victim for sexual harassment
- Robin Shea of Employment and Labor Insider offers two related posts. First she knocks down a common employer myth and then she answers the sexual harassment questions that employers are dying to ask: Sex harassment myth: “He said/she said” is no big deal and Sex on TV: Final FAQs for employers about the Roger Ailes case.
What the EEOC’s recent report says about harassment
The initial charges against Roger Ailes and Fox News occurred shortly after the EEOC issued its report: Select Task Force on the Study of Harassment in the Workplace. The report contemplates a scenario like the Ailes/Fox News case in describing the “Superstar Harasser” – someone perceived as too important or too powerful to take to task.
The EEOC report was 18 months in the making. The Task Force was comprised of “…16 members from around the country, including representatives of academia from various social science disciplines; legal practitioners on both the plaintiff and defense side; employers and employee advocacy groups; and organized labor. The Select Task Force reflected a broad diversity of experience, expertise, and opinion.”
If you haven’t read this report yet, you should. Why? We’ll let the report make that case:
There Is a Compelling Business Case for Stopping and Preventing Harassment.
When employers consider the costs of workplace harassment, they often focus on legal costs, and with good reason. Last year, EEOC alone recovered $164.5 million for workers alleging harassment – and these direct costs are just the tip of the iceberg. Workplace harassment first and foremost comes at a steep cost to those who suffer it, as they experience mental, physical, and economic harm. Beyond that, workplace harassment affects all workers, and its true cost includes decreased productivity, increased turnover, and reputational harm. All of this is a drag on performance – and the bottom-line.
The report outlines particular workplace risk factors, some of which may seem contradictory without reading the explanations:
- Homogenous Workforces -lack of diversity
- Workplaces Where Some Workers Do Not Conform to Workplace Norms
- Cultural and Language Differences in the Workplace
- Coarsened Social Discourse Outside the Workplace
- Workforces with Many Young Workers
- Workplaces with “High Value” Employees
- Workplaces with Significant Power Disparities
- Workplaces that Rely on Customer Service or Client Satisfaction
- Workplaces Where Work is Monotonous or Consists of Low-Intensity Tasks
- Isolated Workspaces
- Workplace Cultures that Tolerate or Encourage Alcohol Consumption
- Decentralized Workplaces
There are many recommendations for employers in the report, with particular attention paid to training. The report notes that:
“Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
Let’s be clear: the report is not suggesting that employers forego training. Rather, it suggests that training be one component in a holistic approach. The authors also suggest that new approaches to training should be explored.
We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.
It’s On Us. Harassment in the workplace will not stop on its own – it’s on all of us to be part of the fight to stop workplace harassment. We cannot be complacent bystanders and expect our workplace cultures to change themselves. For this reason, we suggest exploring the launch of an It’s on Us campaign for the workplace. Originally developed to reduce sexual violence in educational settings, the It’s on Us campaign is premised on the idea that students, faculty, and campus staff should be empowered to be part of the solution to sexual assault, and should be provided the tools and resources to prevent sexual assault as engaged bystanders. Launching a similar It’s on Us campaign in workplaces across the nation – large and small, urban and rural – is an audacious goal. But doing so could transform the problem of workplace harassment from being about targets, harassers, and legal compliance, into one in which co-workers, supervisors, clients, and customers all have roles to play in stopping such harassment.
Here are summaries/commentaries on the EEOC report from employment law blogs:
Maria Greco Danaher, Employment Law Matters
EEOC report suggests “rebooting” workplace harassment prevention efforts.
Jon Hyman, Ohio Employer’s Law Blog
Developing an anti-harassment culture is key to stopping workplace harassment