HR Hero Line

Quid pro quo alive and well, says former Fox News anchor—what’s happening at your office?

by Mark I. Schickman

I have taught more than 200 classes and trainings on sexual harassment. It could be my favorite work and one of my easiest tasks. The law is intuitive and hasn’t changed much in the 40 years I have concentrated in it. The topic is interesting, there are hundreds of scenarios to teach from, and every California supervisor has to take the class every two years. 

There’s only one problem: Even with the law having been on the books for 50 years, people just don’t learn to stop sexually harassing employees. It’s amazing that the smartest men on earth—presidents, law school deans, rocket scientists, Silicon Valley giants, you name it—still get caught with their pants down, unable to keep their hands and propositions to themselves.

The most recent public accusation comes from Fox News host Gretchen Carlson, who filed a complaint in a New Jersey court claiming that Roger Ailes, the chairman of Fox News, propositioned her and, when she rejected him, fired her. According to former Miss America Carlson, Ailes asked for a “sexual relationship,” saying it would make her “good and better” and make any “problems easier to solve.” Carlson claims that she refused and was fired nine months later.

Quicker than you can say “Bill Cosby,” a dozen more women came forward with parallel tales of Ailes using his power position as a fulcrum for sex. Six women told their stories to New York magazine—all with similarly graphic accounts of Ailes’ blatant sexual advances under threat of career suicide to any woman who didn’t cooperate. The parade certainly hasn’t ended yet. Perhaps with that in mind, Ailes resigned from his position at Fox News July 21.

A private forum
This dispute has raised some interesting legal maneuvers, too. Ailes’ legal team has removed the New Jersey state court action to federal court, asking the court to dismiss the public lawsuit and send the matter to confidential arbitration, as required by Carlson’s employment contract with Fox News. Carlson’s response is that her lawsuit is against Ailes personally and not Fox News—and she has no arbitration agreement with him individually. No one is certain whether the federal court will enforce the arbitration provision. Meanwhile, the rest of the industry is lambasting Fox News for the hypocrisy of the all-talk network trying to keep this newsworthy event blanketed by the secrecy of its arbitration clause.

The Equal Employment Opportunity Commission (EEOC) has recently published its policy statement that mandatory arbitration “prevents employees from learning about similar concerns shared by others” and weakens compliance when employers “are not held publicly accountable for violations of anti-discrimination laws.” That policy consideration is also behind recent California legislation—passed by the legislature and vetoed by Governor Jerry Brown—that would have prohibited predispute arbitration agreements with employees.

When will they ever learn?
In the news industry, claims of sexism are old headlines. Thirty years ago, Christine Craft collected $325,000 from her Kansas City television station, which she alleged fired her for being “too old, too unattractive and not deferential enough to men.” That first raised the issue of whether female newspeople would be judged by their appearance rather than their abilities. Over the past 30 years, professional journalism has lost the fight to photogeneity.

But the issue isn’t limited to news or any other industry. It is, rather, a battle against the culture into which we were all socialized and the nonwork world in which sexual innuendo, and more, permeates almost every activity. How can we effectively carve out the workplace as the one statutorily created petri dish in which sexism isn’t permitted to thrive? It’s a tall order being placed in the hands of employee relations specialists.

Do employers know what sexual harassment is? Surely. Do they know it’s prohibited? Of course! Can they stop it from occurring in the workplace? Not completely—the prohibited workplace conduct is too second-nature, too ingrained to disappear. It can be tempered by training and consequences, but it won’t vanish. Ailes is exiting from Fox News as a half century of harassment claims chase him down, but his net worth already exceeds his reasonable opportunity to spend it, and he’s probably baffled by what he did wrong. Among high-power people who are above consequences, sexually harassing behavior will continue for the foreseeable future, no matter what an employer says or does—which is a full employment guarantee for sexual harassment lawyers like me.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco, California. He may be contacted at schickman@freelandlaw.com.