If I asked whether a manager can demand solid job performance from an employee who reported or witnessed alleged acts of harassment, we would all say yes. If I asked whether a manager could threaten or retaliate against that employee, we’d all reply with an emphatic no. We’ve all been presented with scenarios that lead us to ask, is the employment action we’re about to take legitimate supervision, or is it retaliation? Sometimes, taking the extra step of asking that question makes all the difference. Such a scenario recently arose at CBS News, in a familiar context.
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The gruff editor is an iconic American archetype hero, challenging reporters to solidify their sources before publishing a story. Think of Perry White killing Lois Lane’s exposé of Lex Luthor because her witness disappeared or Ben Bradlee putting the brakes on Bob Woodward and Carl Bernstein’s Watergate scoop, which eventually brought down Richard Nixon. CBS News reporter Jericka Duncan was investigating the latest accusations against CBS leveled by the New Yorker, which published the sexual harassment claims of seven women against Jeff Fager, a longtime 60 Minutes producer and former chairman of CBS News. When Duncan contacted Fager for comment, he texted her: “If you repeat these false accusations without any of your own reporting to back them up[,] you will be held responsible for harming me.” Is that the boss’s improper interference with an investigation or a proper admonition we’d expect from any good editor? In other words, “Don’t just take what you hear at face value, but do your job.”
Let’s assume what Fager said was OK to that point. But he added, “There are people who lost their jobs trying to harm me[,] and if you pass on these damaging claims without your own reporting to back them up[,] that will become a serious problem.” Duncan complained about Fager’s text, and CBS wasted no time in terminating him, with Duncan dramatically breaking the story on CBS Evening News. Anchorman Jeff Glor made the unusual move of expressing the support of everybody at CBS Evening News for Duncan.
Fager concurred that he was terminated for sending the text, but he objected to the move, saying: “My language was harsh and, despite the fact that journalists receive harsh demands for fairness all the time, CBS did not like it. . . . One such note should not result in termination after 36 years, but it did.” True, as Fager notes, it is common to demand fairness and solid sources from reporters. We all sympathize with the journalistic principle that stories should be independently investigated, and a veteran 36-year executive producer has the right to demand that due diligence. The same is true of any manager in your organization who demands solid performance, honesty, and diligence from his subordinates in any function. But Fager ignored two cardinal principles that you and your managers shouldn’t ignore.
First, when you’re the subject of an investigative report, you have no business supervising it. You cannot be objective, and perhaps worse, you can’t possibly look objective. Any manager who is confronted by a subordinate’s charges of sexual harassment needs to stand mute, knowing he can challenge the charge vehemently to HR, but not by responding directly to or lecturing his accuser.
Second, counseling and business direction may be fine, but threats are not. Fager likely would’ve gotten away with the admonition to Duncan to investigate both the charge and his denial fully and fairly before going on air with her story. But what could he possibly have been thinking when he texted her that others had been fired for going after him, and if she was unfair to him, “that will become a serious problem”?
After spending 36 years on the inquisitor’s side of the microphone, Fager should know better than to threaten a subordinate who’s investigating a hot story—especially in writing! Perhaps he believed his threats would be enough to silence Duncan and was tone deaf to the sound of his words in the height of the #MeToo movement. More likely, he wasn’t thinking at all—the common denominator that’s behind most of the acts of sexual harassment and follow-up retaliation that cross my desk and yours.
There may be one silver lining for CBS, which is already touted as the most watched network. Sexual harassment has become a high ratings staple of the news. From Les Moonves, to Charlie Rose, to Jeff Fager, CBS does seem to have the most material to work with.
Mark I. Schickman is of counsel with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. He can be reached at 415-541-0200 or schickman@freelandlaw.com.