Ailes Case Reinforces the Need to Have Policies in Place
Sexual Harassment in the Workplace
By Karina L. Schrengohst Esq.
“I think you and I should have had a sexual relationship a long time ago . . . sometimes problems are easier to solve” that way. This statement is one of several sexually charged statements former Fox News host, Gretchen Carlson alleges were made by former chairman and CEO of Fox News, Roger Ailes. Carlson claims, among other things, that she was subjected to sex discrimination and sexual harassment in the workplace. In addition, she alleges that her employment with Fox News was terminated after she reported this discrimination and harassment and rejected Ailes’ sexual advances.
Carlson’s lawsuit illustrates the two different ways sexual harassment claims arise. Most commonly, sexual harassment claims are based on hostile-work-environment harassment, which happens when sexual advances, comments, or conduct are severe and pervasive enough to interfere with an employee’s work environment and work performance.
Carlson claims that her co-host created a hostile work environment by treating her in a sexist and condescending way, shushing her, mocking her, shunning her, refusing to engage with her, and belittling her contributions. According to Carlson, after reporting this conduct to Ailes, he called her a “man hater” and “killer” and told her she needed to learn to “get along with the boys.”
Carlson also claims that Ailes ogled her and made comments about her body, including asking her to turn around so he could view her posterior, commented on certain outfits enhancing her figure, and commenting on her legs. In addition, this case illustrates quid pro quo sexual harassment, which occurs when something — a raise or promotion, for example — is promised in exchange for sexual favors or when an employee is fired for saying no to sexual advances.
According to Carlson, Ailes made it clear to her that the problems she was having at work would not have existed and could be solved if she had a sexual relationship with him.
Sex discrimination and sexual harassment is prohibited in the workplace by state and federal law. As such, employers have an obligation to take reasonable steps to prevent sexual harassment before it arises and to create a harassment-free workplace.
The first step employers can take toward prevention is creating and implementing a comprehensive written policy prohibiting sexual harassment, which has a procedure for reporting harassment. The proliferation of electronic devices and social media adds a layer of complication that did not previously exist in the workplace. As employees increasingly communicate electronically and via social media sites, there are even more opportunities for problems to arise — and to arise outside of the line of sight of supervisors.
This means that an employer’s policies should consider how harassment can arise in this context.
The next step employers can take toward eliminating sexual harassment in the workplace is ensuring that their policies are effective in practice. It is critical to communicate with employees about anti-discrimination and anti-harassment policies to ensure employees understand the company’s policies. In addition, employers should regularly train employees with supervisory roles to make certain they understand their obligations and know how to recognize and report sexual harassment when it arises.
This is particularly important because supervisors are a company’s first line of defense. What they do (or do not do) can prevent (or create) a problem. Providing the proper training to supervisors can help shield the company from costly and time-consuming employment litigation claims. Further, employers should establish an investigative process to promptly and consistently handle all complaints of discrimination and harassment. Any allegation of sexual harassment must be treated seriously, documented, and investigated in a timely manner. Finally, employers should take appropriate corrective action, as necessary.
Although in this instance Fox News has lucked out, that is not usually the case and employers typically find themselves named as a party. Employers would be wise to take proactive, preventative steps to eliminate workplace discrimination and harassment, which in turn helps to reduce the risk of liability when faced with a sexual harassment lawsuit.
Karina L. Schrengohst Esq. specializes exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, women-managed, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Mass. Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]yalLawFirm.com.