California HR, Harassment

Sexual Harassment Prevention: The Easiest Thing to Teach and the Hardest Thing to Accomplish

When we reported last year about the ouster of recently deceased Fox News chairman Roger Ailes, we noted that Ailes’ repeated pattern of “couch casting” didn’t occur in a vacuum; rather, it sent a message throughout the organization that sexually harassing behavior was condoned at the highest level. We noted that it would take more to clean Fox’s house, and I doubted that would happen.

Sexual Harassment

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But Fox took several more high-profile steps recently to double down on its message. After 5 years of paying off Bill O’Reilly’s sexual harassment accusers—giving $13 million to five of them—Fox gave O’Reilly the ax more abruptly and shockingly than King Joffrey did to Ned Stark in Game of Thrones.

On the day he was terminated, O’Reilly was all over the news, defending his conduct and that of his network in his usual swaggering manner, and by sundown, he was gone. Soon after, Fox president Bill Shine was forced out. In losing O’Reilly, Fox is jettisoning the highest-rated cash cow in the business. He was estimated to have earned the network more than $150 million in annual profits and was an anchor who secured viewers for the rest of the network’s programming. His monetary value went beyond advertisers because Fox made more money from licensing fees for use of clips from his show than it did from selling commercials.

Ultimately, the Murdoch family, who owns the network, can afford to lose a few hundred million dollars. Industry sources speculate that one key motive in axing O’Reilly was Fox’s desire to merge with Europe’s Sky News amid concerns that his alleged behavior might cause regulators to impede that deal.

Many observers, including Wendy Walsh, one of O’Reilly’s accusers, believe that Fox’s quick turnaround reflects “a seismic cultural shift, when a corporation puts a woman’s rights above the bottom line.” Anthony DiClemente, an analyst at Nomura Instinet, noted, “Today, we have entered a new era in workplace politics.” He describes “an environment where corporate America realizes we can have zero tolerance for sexual harassment.”

Of course, this new culture is a fickle, changing thing. Bill Cosby’s roofie romances were well-documented and widely publicized in 2005, and nobody cared. Today, he can’t perform anywhere, while his award-winning children’s books are on the American Library Association’s list of top 10 books targeted for removal from school libraries.

But any student of world literature knows that a cultural shift against sexual conduct is cyclical because the nexus between sex and people in power has been timeless and universal. Shocked over O’Reilly’s fall from grace?

The story of Sampson and Delilah presents the archetype of a man who loses his head because he can’t keep his sexual desires in check. Greek mythology has the world at war over Helen of Troy. Hindu culture recounts long-simmering and flaring battles between rulers over the hand of Sita, a paragon of female virtue. Romeo and Juliet, perhaps Western literature’s most famous love story, is based on the notion that there’s something noble in great tragedy in the name of love and succumbing to a liaison that will put everyone around you at risk.

Dumb, if you think about it, but ubiquitous and romanticized all the same. And in real life, few people surpass Bill Clinton’s combination of brains and political savvy, but his career almost went down, predictably, because he had sex (yes, President Clinton, it was sex) with a 21-year-old White House intern.

The law interprets sexual harassment differently from sexual violence or sexual assault. Most of O’Reilly’s accusers describe no physical contact. One asserts she was retaliated against after she rebuffed his sexual advances; another complained that he suggested she show more cleavage on the air. Our laws set a pretty strict bar for workplace sexual conduct, demanding a standard that is ignored in almost every aspect of human interaction and runs contrary to the flow of human history. It’s why sexual harassment prevention is the easiest thing to teach and the hardest thing to accomplish.

I am in the business of training people against allowing any hint of sexual activity in the workplace, crafting policies to prevent sexual harassment, developing solutions for it, investigating and remedying it—in short, trying to eradicate sexual misconduct in the workplace. As history makes clear—and judging by recent headlines and our collective professional experiences—I will never be out of work.

Mark I. Schickman is of counsel with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at 415-541-0200 or schickman@freelandlaw.com.