Bill O’Reilly and the Market-Driven Approach to Halting Sexual Harassment

Note: Bill O’Reilly was fired by Fox News on 4/19/17 after an advertiser revolt stemming from pubilcity surrounding his settlement of five sexual harassment lawsuits. “After a thorough and careful review of the allegations, the company and Bill O’Reilly have agreed that Bill O’Reilly will not be returning to the Fox News Channel,” 21st Century Fox, the parent company of Fox News, said in a statement. The departure of O’Reilly, who was Fox’s biggest money-maker, is yet another example of the devastating risk that employers take when they tolerate an abusive workplace.  More than 50 advertisers withdrew from his prime-time show, and 21st Century Fox asked a law firm to investigate a complaint from a woman who said O’Reilly dropped efforts to make her a contributor in 2013 after she turned down his invitation to visit his hotel room

In one sense,  Bill OReilly and Fox News work for the corporations that buy commercial time on”The O’Reilly Factor.” There would be no O’Reilly Factor without commercial advertising.

It is significant that  more than 20 corporate advertisers withdrew their advertising dollars from The O’Reilly Factor after the New York Times reported that Fox and O’Reilly paid $13 million to five women to settle allegations of sexual harassment.  This is evidence of a simple but effective strategy to address human rights abuses in the workplace.  Corporations promise to only purchase products from employers that maintain highly ethical, humane standards in the workplace.

This  “market driven model”  has been surprisingly successful in other contexts.

For example, beginning in 2011, members of the Fair Food Standards Council,  including McDonald’s and Walmart, pledged to only buy tomatoes from farm growers who implement a human rights-based code of conduct that is monitored and enforced by the Council.  Judge Laura Safer Espinoza a retired New York State Supreme Court justice who is director of the Council, told the EEOC in 2015 that the market-driven model had  in “four short years” ended decades of impunity for perpetrators of sexual harassment and sexual violence Florida’s tomato growing industry.

It probably won’t take four years to change the environment at Fox News. Former CEO Roger Ailes was ousted from his job last summer amid lawsuits and allegations of sexual harassment and now O’Reilly is on the hot seat.  Fox would be less than shrewd if it was not addressing what appears to be a toxic top-down culture at Fox.

According to CNN, the following companies have withdrawn their commercial advertising dollars from The O’Reilly Factor: Mercedes-Benz, Hyundai, BMW of North America, Mitsubishi Motors, Lexus, Constant Contact, Bayer, Ainsworth Pet Nutrition, Orkin, Untuckit, Allstate, Esurance, T. Rowe Price, , Sanofi, Credit Karma, Wayfair, TrueCar, the Society for Human Resource Management and The Wonderful Company. They all pulled ads from the O’Reilly Factor, though most of their advertising dollars were moved to other programs on the network.  British drugmaker GlaxoSmithKline Plc said it was temporarily suspending its advertising on the Fox channel.

O’Reilly may survive because”The O’Reilly Factor” is Fox News’ most watched program, averaging four million viewers.  But if more corporations follow the example of GlaxoSmithKline and withdraw their advertising dollars altogether from Fox in reaction to the station’s sexual harassment problem,  O’Reilly may find himiself out of a job.

Fix the ‘Blacklisting’ Rule

President Donald Trump has officially revoked  the so-called “Blacklisting” executive order that was signed by former President Barack H. Obama in 2014 to encourage federal contractors to obey labor laws.

That’s a shame.  It’s smart public policy to save federal tax dollars by encouraging voluntary compliance with federal law. However, in truth, Obama’s executive order was needlessly flawed and arguably unconstitutional..

As written, the blacklisting rule required contractors seeking federal contracts over $500,000 to report both alleged labor violations and adjudicated violations to federal agencies. Federal agencies could then use the information  to award future contracts, cancel existing contracts, and potentially demand remedial action to address a pattern of violations.

It should be obvious even to a high school student that the federal government can’t penalize a contractor that is merely accused of a labor law violation. What if the contractor is innocent? Contractors have a right to due process of law under the U.S. Constitution. [Read more…]

Read All About It! NPR Discovers Age Discrimination

A recent tweet from NPR’s reporter on aging, Ina Jaffe:

“Age discrimination is real.”

Isn’t it great that NPR has finally discovered that age discrimination is real?

I’m an attorney and former judge who wrote a book about age discrimination in 2014 called, Betrayed: The Legalization of Age Discrimination in the Workplace.  In it, I analyze, in great detail, the failings of the Age Discrimination in Employment Act of 1967. I show indisputably that older workers are second class citizens under federal law and thus vulnerable to age discrimination in employment. I also document the complete failure of all three branches of government to counteract the predictable and overwhelming wave of age discrimination against older workers during and since the Great Recession.

I sent a courtesy copy of the book to NPR, which ignored it (as it has the problem of age discrimination in employment generally).

Hallelujah, after all these years, NPR and Ina Jaffe acknowledge age discrimination in employment.

The problem with writing about age discrimination is that many media organizations ignore the topic because they don’t think older workers are important or cool.  Hence, a national radio network that claims to be a major news outlet has little interest in or understanding of a problem that condemns millions of older workers – mostly women – to poverty in their old age. [Read more…]

Judge Gorsuch and the ‘Frozen Trucker’ case

I write a lot about very bad court decisions. Here’s one from U.S. Supreme Court nominee Judge Neil Gorsuch that rivals the very worst.

Judge Gorsuch wrote a dissent in Transam Trucking, Inc. v. Administrative Review Board, U.S. Department of Labor in which he said a trucker should be fired because he left a big truck rig with frozen brakes that was stranded by the side of the road late at night in frigid weather, three hours after his employer failed to arrive to fix the truck. The cabin was unheated and the trucker was showing signs of hypothermia. He unhooked the trailer and drove the cab to a gas station where he warmed up, and then he returned. He was fired.

“It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that” wrote Gorsuch.”There’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”

Do we really need a law saying you can save your life if its 14 degrees below zero,  your torso is numb and your speech slurred, and your employer has failed to rescue you after several hours time?

[Read more…]