Ratchet Up the Consequences for Employers that Ignore Sexual Harassment

A perusal of recent headlines shows that companies will place their heads firmly in the sand to keep harassers on the payroll if the company is focused on short term profits.

Despite potential ruinous risk to reputation, costly turnover, lost work time and higher health care costs (among other things) the fact of the matter is that many employers  tolerate sexual harassment when the harasser is valuable to the organization. In some ways, the on-going wave of public sexual harassment incidents is similar to the problem with unsafe cars manufactured in the United States in the 1960s. It was cheaper for car makers to settle lawsuits out of court than to manufacturer safer cars.

In February, 21st Century Fox renewed Bill O’Reilly’s contract  knowing that he was in the process of settling a sexual harassment complaint by a news analyst, who eventually received a $32 million settlement.  O’Reilly, then  the most-watched figure on cable TV, had earlier settled several other sexual harassment claims out of court.

Producer Harvey Weinstein had several Oscars to his credit but he was a notorious bully for years, not to mention sexual predator (or worse). He also was known to engage in physical violence at the office on occasion.

TMZ says  Weinstein’s 2015 employment contract states that if the Weinstein Company had to pay settlements for his sexual or other misconduct, he must reimburse the company and pay an escalating set of fines: $1 million for the fourth and any subsequent instance.

Congress must insure employers that ignore evidence of sexual harassment face consequences that make it more expensive for them to do nothing than to act.

The complacency of Fox and the Weinstein Company demonstrates how little employers today fear the American legal system, which they count on to  work on their benefit. Typically, employers retain  human resource officers and legal staff who are trained to protect the company from sexual harassment complaints. Courts permit employers to make the legal process as long and difficult as possible for the victims, who often have few resources because they were driven out of their jobs by the employer and the harasser.

A recent development has made it even easier for employers. When the EEOC finds there is reasonable cause to believe the employer is guilty of sexual harassment, it offers a free and confidential mediation program whereby the employer can settle the matter – usually for peanuts – without even having to go to court. And it’s all secret!

Both Fox and The Weinstein Company knew or should have known of their employee’s abusive behavior but apparently they concluded the benefit of retaining the abuser outweighed the cost of paying the occasional out-of-court settlement.  What is needed is serious consequence for employers who ignore evidence of sexual harassment. And by that I mean serious.  A company that is making a profit of X billion should be ordered by a court to pay a percentage of its profit in damages. In that way, society will insure that employers take sexual harassment seriously.

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. [Read more…]