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No spin here: O’Reilly case shows ‘high performer’ not worth harassment factor

When Fox News paid some of the $13 million needed to settle sexual harassment claims against O’Reilly Factor host Bill O’Reilly, it seemingly failed to fully address the problem. The company didn’t thoroughly investigate or take appropriate remedial action until there was public pressure to do so, according to news reports. Employment law attorneys say that’s a recipe for disaster.

Fox tried to solve a culture of harassment by paying people off, says John S. Gannon, an associate with Skoler, Abbott & Presser, P.C., and an editor of Massachusetts Employment Law Letter. Instead, the network should have (1) implemented better policies and training, (2) conducted complete investigations, and (3) followed up with necessary discipline.

Based on news coverage of the events, it seems that Fox didn’t do anything about the harassment until the allegations were made public. “And that’s too late,” Gannon said. Employers must take preventive measures and jump to action as soon as a claim is filed.

Start at the top
If you have harassment occurring at the top of your organization, as Fox did, that’s a major clue that the same activity is going on at lower levels, says Mark I. Schickman, a partner at Freeland Cooper & Foreman LLP and an editor of California Employment Law Letter. “It’s rare that you’ve got that issue at the top and don’t have it elsewhere,” he said. Employees see that behavior and take their cues from it.

To address the problem, HR needs executive buy-in for new policies, practices, and training. That should include a reporting mechanism that allows workers to choose to complain to a male or female employee who is not their supervisor. In addition, training should specifically teach supervisors to be on the lookout for harassment. They’re in the best position to spot it, Gannon said.

HR also must ensure that higher-ups practice what they preach. “Stopping harassment is really easy to articulate and teach,” Schickman said. But ensuring that training is effective is a different story. Some people think they’re above consequences, he said, especially those in positions of power.

Finally, HR should identify factors that may trigger harassment and address them, Schickman said. For example, misconduct often happens on overnight trips or at events with alcohol. Training isn’t 100 percent effective because people forget about it as soon as one of those triggers is introduced.

So treat employees like adults, but take preventive measures, Schickman said. For example, send out reminders about your policies ahead of overnight trips. Ensure that everyone has booked hotel accommodations in advance (you don’t want anyone making a last-minute decision to share a room). Be aware of previous issues between employees going on the trip. And when everyone is back at work, ask how the trip went.

Don’t be disheartened if your efforts don’t result in immediate change. “Don’t think that you’re going to be able to resolve all at once a problem [that] was created over the course of decades,” Schickman said. “It’s going to take a while for your internal culture to change. And it’s going to take a while for people to trust the change.”

Properly address complaints
Even with the best policies and training, you’ll probably still receive a complaint eventually. The first step is to conduct a full investigation, Gannon said. Fox News said it investigates all claims but announced additional efforts after The New York Times uncovered O’Reilly’s settlement agreement.

If you determine that harassment occurred, the next step is to take remedial action, Gannon explained. Again, Fox News seemed to take this step seriously only after public pressure mounted. Whether you suspend, terminate, or take other action against an employee should depend on the facts of the case.

Sometimes it’s an employee’s first offense, the facts are not particularly egregious, and he’s extremely apologetic. On the other hand, failing to fire a worker who has sexually harassed coworkers again and again demonstrates that the employer does not take its obligation to prevent harassment seriously.

Your actions must be reasonably calculated to ensure that offending behavior does not recur, Gannon said. “That’s exactly what Fox News didn’t do here,” he noted.

Apply the rules to everyone
Finally, remember that an employee’s position or skill does not make him immune from consequences, Schickman said. Uber recently came under fire after an employee alleged that HR refused to take action against her harasser. Instead, she claims the employer told her—and numerous other victims—that he was a “high performer” and a first-time offender.

Fox News probably thought the allegations against O’Reilly would never come out, Schickman said. The settlement undoubtedly included nondisclosure provisions, but those are almost always unenforceable and have many loopholes. “I think they tried to give an important player a pass and discovered that it was too expensive to do,” Schickman added, noting that many advertisers pulled their support following the Times’ story.

Employers have a responsibility to ensure that sexual harassment does not continue, regardless of the harasser’s job title or skill, Schickman said. “There’s nobody too big to touch,” he added.

How can you implement a culture that’s harassment-free? Join Catherine Mattice and Jerry Carbo as they present “Civility at Work: Build a Legally Enforceable Culture of Respect” on Wednesday, May 24, 2017. Mattice and Carbo will illustrate the legal steps employers may take and the legal limits of controlling employees’ speech and maintaining civility in the workplace. Click here to learn more and to register today.