With the announcement of Gretchen Carlson’s (and, subsequently, several other female employees’) complaints about Fox News head Roger Ailes and his ensuing resignation, sexual harassment has recently been in the news. Although Ailes’ conduct somehow slipped under Fox’s radar, most other employers know that employee complaints about sexual harassment are a serious matter that must be promptly investigated. And most, if not all, of you have a sexual harassment policy that includes strong language assuring employees that you will not tolerate sexual harassment, you will act quickly to eliminate inappropriate conduct, and anyone found to have violated your sexual harassment policy will be subject to prompt discipline. However, having such a policy does little good if stereotypes about what sexual harassment “looks like” stop employees and supervisors from recognizing—or reporting—it.
Modern perceptions of sexual harassment generally bring to mind a female victim and a male perpetrator. However, like Jennifer Aniston in “Horrible Bosses,” a sexual harasser can be female, too. And as the recent lawsuit against Elton John shows, sexual harassment can happen between people of the same gender, regardless of the harasser’s or the victim’s sexual orientation.
Fox News understands the life of a news story. It knew that former anchor Gretchen Carlson’s claims of sexual harassment against its former CEO and chairman Roger Ailes would draw headlines for months, as would the ultimate resolution of the claims. In news parlance, Carlson’s claims had “legs.” So, too, would reports of a major settlement of the action. On September 6, Fox News compressed the story of Carlson’s suit with news of the $20 million settlement of her claims—hoping both stories would rise and fall over Labor Day and become a dim memory long before election night.
Fox News acted quickly to jettison Ailes, the actor prominently named in Carlson’s lawsuit. It also announced new sexual harassment policies and now touts a culture that no longer tolerates the type of blatant harassment reported by numerous women after Carlson’s story broke. It issued a public apology “that Gretchen was not treated with the respect and dignity that she and the rest of our colleagues deserve.”
by Joanna Vilos
Employees sometimes complain about undesired or harassing conduct that does not rise to the level of a hostile work environment under Title VII of the Civil Rights Act of 1964. A decision from a Wyoming federal court reveals which steps employers can take to avoid liability and how employers can defend themselves from an employee’s allegations.
Hostile work environment claims
As employers strive to create diverse workforces, they need to think beyond just attracting employees from varied backgrounds. It’s just as important to think about how to retain a diverse group. Taking steps to prevent sexual harassment is one way to make sure talented and productive employees don’t flee work environments they find uncomfortable, even unlawful.
Recognizing sexual harassment is the first step. Gone are the days when a typical case involved a male boss chasing a female secretary around the office, or workers in a male-dominated workplace posting a calendar displaying risqué pictures in the breakroom. The Equal Employment Opportunity Commission, tasked with enforcing antiharassment law, and courts now recognize many more situations that fit the definition of sexual harassment. So employers need to take concrete steps to reduce their risk regarding subtle as well as blatant harassment.
I’m old enough to remember a time when sexual harassment wasn’t illegal, in the era before the courts began to apply Title VII of the Civil Rights Act of 1964 to such claims. I have vivid memories of getting a “back rub” from a manager in the small office where I was doing temporary secretarial work during a college vacation. It was, frankly, creepy, but I had no real recourse. I needed the job, and from a practical standpoint, there really wasn’t anyone I could complain to. From a legal standpoint, sexual harassment didn’t become actionable under Title VII until 1977, and it wasn’t until 1988 that the courts began to consider “hostile work environment” a valid claim of sexual harassment.
Now, of course, hostile work environment is a term that covers all forms of harassment focused on or because of an individual’s membership in a protected class, and it’s also used by employees who are merely objecting to a boss they believe is harsh or unreasonable or a workplace environment that’s toxic because employees just don’t get along. But you would think employers have learned that sexual conduct in the workplace is simply too risky to tolerate.