Fox News: The Cost of Sexual Harassment

Fox News has gone from being the stolid and leading voice of conservatism in the United States to a network wracked with turmoil.

This week, it was announced that Fox  is losing it’s leading on-air female personality, Megyn Kelly, 46, who is moving to NBC. Her 9 p.m. show, “Kelly File,” was the second-highest rated in cable news. Kelly reportedly eschewed an offer from Fox for more than $20 million per year to extend her contract and stay.

Fox’s turmoil began last Fall when its parent company, 21st Century Fox, paid $20 million to former Fox News anchor Gretchen Carlson to settle a sexual harassment suit filed against Roger Ailes, 76, who led the Fox News network for 20 years. Since then, more than 20 former and current female employees at Fox News, including Kelly, came forward to complain about sexual harassment by Ailes dating back to the 1960s.

Whether or not sexual harassment spurred Kelly’s departure, it played a role in destabilizing the network and made Fox appear vulnerable to other networks in search of top talent.

Clearly, 21st Century Fox was the major loser in this debacle.

At the end of the day, 21st Century Fox’s losses will be staggering.

Ailes left the network with a $40 million golden parachute.  The company lost Kelly and the revenue from her popular cable news show. Fox paid $20 million to Carlson to settle her lawsuit (even though it technically was not even a defendant) and Fox has paid an untold amount to other alleged sexual harassment victims. Perhaps the worst loss suffered by Fox involves it’s most valuable asset – its reputation as a company aligned with traditional American values of decency, civility and respect.

And all that is as it should be. An employer is legally responsible for providing workers with a safe workplace free from bullying and harassment. This blog has long argued that employers that ignore or tolerate a climate of workplace bullying invite, among other things, unnecessary turnover and costly lawsuits. At its core, sexual harassment is a form of workplace bullying. Fox appears to have put anti-harassment policies in place but failed to insure these policies were actually implemented.

Meanwhile, like most abusers,Ailes insists upon his innocence and has not even apologized to Fox.  And, despite wreaking havoc at Fox, Ailes reportedly serves as an adviser to President-Elect Donald Trump, himself a former owner of the Miss Universe Organization who has treated women in a manner that can be charitably described as boorish. (What could go wrong with this scenario?)

Outfoxed: Carlson Settles for $20 Million & Apology

Former Fox News Anchor Gretchen Carlson  has received among the largest payouts in history  – $20 million – to settle a sexual harassment case.

Ironically, the case was settled not by the defendant, former Fox News chairperson Roger Ailes, but by his former employer, 21st Century Fox, the parent company of Fox news.  Ailes, 76, won’t pay a dime. (Not only that,  Ailes received a $40 million payout from Fox when he left his job under pressure in July.)

It is speculated Tuesday that Carlson, a former Miss America,  secretly tape recorded Ailes, whom she alleged refused to renew her contract after she refused to have sexual relations with  him.

The largest sexual harassment award in history is believed to have occurred in 2011 when a federal jury in Tennessee awarded $95 million to Ashley Alford, a young employee who was  sexual  harassed and physically assaulted by a supervisor  at the rent-to-own company, The Aaron’s Inc. The award included $15 million in compensatory damages and $80 million in punitive damages. U.S. District Court Judge J.  Michael Reagan subsequently reduced  the amount the jury awarded Alford on the sexual harassment claim from $4 million to $300,000 pursuant to a federal statutory cap. on damages under Title VII of the Civil Rights Act. Judge Reagan also vacated $50 million of the punitive damages award. That still left Alford with about $41 million.

In addition to the monetary award, 21st Century Fox issued a press release stating:  “We sincerely regret and apologize for the fact that Gretchen was no treated with the respect and dignity that she and all of our colleagues deserve.”

Meanwhile, two other women at Fox reportedly were offered settlements after complaining about sexual harassment.

Carlson’s complaint appears to have prompted the sudden departure of Fox personality Greta Van Susteren from the network on Tuesday. Susteren had publicly defended Ailes and accused Carlson of retaliating against Ailes after  being fired due to poor ratings.

Carlson received little support generally from her former Fox colleagues. In addition to Van Susteren, more than a dozen top personalities at Fox News including Sean Hannity, Neil Cavuto and Kimberly Guilfoyle defended Ailes against claims of sexual misconduct.

Roadmap to Stop Harassment in the Workplace

In the wake of the controversy surrounding Fox CEO Roger Ailes, it is worth reviewing how to handle the problem of  harassment in the workplace.

Ailes, 76,was recently forced out of his position at the television network that he helped found because of complaints of sexual harassment that allegedly dated back for decades.

The EEOC created a select task force in January 2015 to study the general problem of workplace harassment, including sexual harassment. The task force, which included experts from around the country, issued a report last month recommending that employers actively promote an organizational culture of respect and civility.

The task force recommended:

  •  Employers should have a comprehensive anti-harassment policy that prohibits harassment based on any protected characteristic, and which includes social media considerations.
  • The anti-harassment policy should include details about how to complain of  and how to report harassment, must be communicated frequently to employees, in a variety of forms and methods.
  • Employers should provide reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
  • Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
  • Employers should periodically “test” their reporting system to determine how well the system is working.
  • Employers should devote enough resources to insure that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.

Specific details about the report are available on the EEOC web site.

Almost a third of the 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment, including charges of unlawful harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion. And that is the tip of the iceberg. The EEOC reports that three out of four individuals who experienced harassment did not talk to a supervisor, manager, or union representative about the harassing conduct because they feared disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.

Penalty for Sexual Harassment Rarely Fits The ‘Crime’

Note: News outlets reported July 21, 2016 that Ailes will receive a $40 million buyout from Fox and a new job as an “advisor” to the network.

What should the penalty be for a manager who allegedly abused his power for decades by sexually harassing female subordinates?

Disgrace? Dismissal? Banishment?

Well, that does not appear to be what is happening in the case of Roger Ailes, the chief executive officer of Fox News who allegedly sexually harassed female subordinates since the 1960s.

According to the Drudge Report, 21st Century Fox, the corporate parent of Fox News, is negotiating an exit package with Ailes that includes a $40 million buyout. Other outlets report Fox wants to keep Ailes on the payroll as a consultant. In other words, the consequences of Ailes’ allegedly abusive behavior may consist of a fat check and a change of job title.

One reason that sexual harassment remains epidemic in the American workplace is the lack of any serious consequences for the abuser.  Victims of sexual harassment lose their dignity, sense of trust and  peace of mind. Many lose their jobs and financial security. In the rare instance that a sexual harasser is held to account, the consequences range from a pat on the hand to a quiet suggestion that it is time to move on.

Women in the workplace are well aware they lack any real protection from sexual harassment and this knowledge understandably deters them from reporting the problem.

Ailes woes began a few weeks ago when Gretchen Carlson, a former news anchor, filed a lawsuit claiming that Ailes fired her because she refused to have a sexual relationship with him. Ailes, 76, vigorously denied the accusation. Some observers (including former co-workers) dismissed Carlson’s complaint as a parting shot by an aging beauty queen whose afternoon TV show suffered from poor ratings.  (Fox is presently trying to move Carlson’s lawsuit out of federal court and the public eye into a closed-door arbitration proceedings.)

The problem for Ailes arose because other women began complaining about his allegedly abusive behavior.  Carlson’s attorney, Nancy Erika Smith, said that at least a dozen women contacted her firm after Carlson’s lawsuit was filed complaining of similar harassment by Ailes. The final blow appears to be a story by New York Magazine stating that Fox News star Megyn Kelly told a law firm hired to investigate Carlson’s complaint that Ailes had sexually harassed her a decade ago.

Fox had no choice but to do something.  When an employer receives a complaint that a manager is sexually harassing a subordinate, the employer is on notice and must act to prevent future harm (including retaliation) or it will risk serious damages.  However, the law does not require the employer to actually penalize the harasser.  So Fox’s game plan appears to be this – remove Ailes from his supervisory position, while keeping him happy and on the job.