05-23-2017
By Amy Nickell Jacobs, Esq.
It has been nearly 20 years since the United States Supreme Court established a new framework for evaluating sexual harassment claims under Title VII. Specifically, in 1998, the Supreme Court issued not one, not two, but three landmark decisions in this area.1 These decisions, specifically the Faragher/Ellerth decisions, resulted in the implementation of improved processes in corporate America allowing victims to more confidently assert complaints and object to workplace harassment, whether quid pro quo or hostile environment.
Conscientious employers promptly followed the guidelines set forth in Faragher/Ellerth. Anti-harassment policies were implemented or improved. Managers and employees were trained on recognizing and preventing harassment, with special emphasis for managers on handling complaints. Multiple avenues for complaint submission, including hotlines, were created to encourage victims to come forward. The Supreme Court created a powerful incentive for employers to implement and maintain these measures – an affirmative defense to harassment claims – that could be used to minimize liability in harassment cases.
While the Court has since slightly tweaked the framework,2 the fundamentals of Faragher/Ellerth remain in place. Essentially, in cases of hostile work environment sexual harassment committed by a supervisor, an employer may minimize liability via the affirmative defense. Specifically, the employer can present evidence that it took steps to prevent the harassment by implementing a policy and training all employees on the policy, and then took prompt remedial action (investigation and disciplinary action if appropriate) once it became aware of any harassment.
So. It’s been 20 years. Are we good?
Not quite.
Upheaval at Fox News
Fox News has been in the headlines recently due to multi-million dollar settlements of harassment complaints against its former CEO, Roger Ailes, and Bill O’Reilly, the star of the network’s flagship program, The O’Reilly Factor. Reports indicate that females at the network did not complain about the behavior due to unclear, if even existent, complaint procedures, but more importantly due to fear of retaliation and potential negative impact on career advancement.
The situation at Fox News reveals several elements that, had they been in place, might have prevented the current upheaval. Most significantly, it appears that top management did not fully embrace the concept of a harassment free workplace. On the contrary, Fox has reportedly paid $13 million in settlements to five women for claims made against O’Reilly alone.3 Allegations against both Ailes and O’Reilly include refusing sexual advances and retaliation for rebuffing those advances.4 If true, this failure of leadership resulted in both a continuation of inappropriate conduct, and a reluctance of victims to complain for fear of career impact. Both Mr. Ailes and Mr. O’Reilly have been terminated and various other Fox personalities and executives have left the network in the wake of the allegations.
The Fox saga continues to evolve. Roger Ailes died on May 18, 2017, due to complications from a fall in his home. His death will surely complicate the litigation by creating evidentiary and other challenges for both Fox and the women pursuing claims against Fox and Mr. Ailes individually.5 Further, on May 19, 2017, Fox fired another high-profile personality, Bob Beckel, for allegedly making racially insensitive remarks to a Fox employee.6 In early 2017, racial discrimination allegations against the long-time comptroller, Judith Slater, resulted in her termination from the network.7
Fox is Not Alone
To be fair, Fox is not the only employer that still has issues with sexual harassment. The EEOC received almost 28,000 charges of harassment in 2015, and nearly half of those involved sexual harassment.8 Other high profile allegations have recently emerged about L.A. Reid of Sony Music, Sean “Diddy” Combs, and Uber.9
Significantly, employers of all sizes can stumble when confronted with a complaint of harassing behavior. A well-meaning manager can “screw up” the situation with an incorrect response to a complainant. Sending the complainant to “talk it out” with the accused, or downplaying the victim’s perception of the problem are both ill-advised responses. It is critical that all managers are educated on the appropriate response when receiving a complaint of harassing behavior, the importance of contacting human resources about those complaints, and how to have a conversation with an employee when they bring up “uncomfortable” behavior in the workplace. Even if the underlying behavior is not significant, an employer’s failure to adhere to process can create significant liability. Indeed, the Faragher/Ellerth framework is designed to incentivize employers to create and adhere to process in every instance. Failure to do so will not bode well.
Furthermore, failure to adhere to process and maintain a disciplined approach to complaint resolution can look a lot like retaliation. This is important because retaliation claims have been steadily increasing. In 2016, retaliation claims constituted 45% of all claims filed with the EEOC, making it the most frequently made type of employment discrimination complaint.10 The popularity of retaliation claims combined with the ever-expanding definition of what constitutes retaliation make this a very dangerous area for employers.
Reminders From Faragher/Ellerth
The takeaways from Faragher/Ellerth may be oldies, but they are still goodies that have withstood the test of time.
Employers are well-served to implement and maintain a strong anti-harassment program. Components of a solid program include a thoughtful policy that reflects current procedures, and periodic training for all employees that explains and reinforces the policy. Some specific suggestions include:
- Develop a policy that clearly states that sexual harassment, and harassment based on any legally protected characteristic, is prohibited by law and by the company. Define harassment (unwelcome sexual behavior that interferes with the work environment) and provide a range of examples. The policy should also outline the complaint procedure, and specifically include a non-retaliation statement.
- Train your employees. Training is the second prong of the prevention program. Most know that the quid pro quo type of harassment is inappropriate, but the gray areas start to emerge in discussions about hostile environment sexual harassment. Innovative, interactive and thoughtful training sessions can promote these discussions where employees can truly get a sense of what is acceptable and what is not acceptable in the workplace.
The training should review the employer’s anti-harassment policy, and the complaint procedure. The challenge with training, however, is keeping it fresh and interesting to the participants. Whether training is done in-house or through a vendor like EPS, explore options for different techniques, such as case studies or role-playing complaint intake. Opportunities for supervisory level employees to actually practice a response to a complainant can be valuable.
- Involve upper management. A highly effective tool in training programs is the endorsement and support of upper management. This can be achieved, among other ways, by a brief personal introduction from a highly-placed manager or even a recorded video message.
- Be clear about complaint procedures. The policy and the training should also include specific complaint procedures. All employees need to know how to make a complaint, and all supervisors need to know how to respond and who to call for guidance. This a critical stage where human resources representatives and company lawyers may not be the first to hear a complaint. Make certain managers have the tools to handle these encounters.
- Consider an employee complaint hotline. The FOX story has prompted a fair amount of discussion about the value of employee complaint hotlines. Hotlines can be a strategic and effective tool to encourage reporting by employees. Even anonymous hotline reports can be helpful to an organization, if handled appropriately.
The purpose of a hotline is to encourage reporting. To achieve this goal, the hotline process must be publicized to the employee population. This can be done in training, in the employee manual, and via postings on the company website/intranet or public locations. If a hotline is put in place, however, it must be valued as a tool for workplace improvement and not to “check a box” on the anti-harassment program.
Many employers employ third parties to manage their hotline. Do research on your hotline vendor before committing to the process. Ask questions like who answers the calls and what level of HR experience do they have, what questions are asked, how will complaints be reported back to the employer and in what timeframe, and what records are kept.
And then, when you think you have the hard battles won, remember that there are still managers and employers out there who will seriously suggest firing an employee for having made a complaint of sexual harassment. It’s unlawful. It’s unwise as a business decision. It can have far reaching negative financial and public relations impact on an organization. But most importantly, it’s wrong.
20 years? Guess it’s not long enough.