By Seth Berenzweig and Drew Smith

With a medley of infographics, tickers and colorful personalities that leave the television more crowded than a fish market on Good Friday, Fox News ascended in the past decade to the zenith of cable news. Billing itself as “America’s #1 cable news network,” Fox News’ Herculean grip on the industry is now being tested, thanks in part to widespread allegations of a hostile work environment.

The first wave of crisis washed over Fox News when it was reported in September of 2016 that the new outlet’s parent company, 21st Century Fox, agreed to pay former anchor Gretchen Carlson $20 million to settle her sexual harassment lawsuit against Fox News chairman, Roger Ailes. Following this report, several other women came forward with allegations against Ailes, which prompted Fox News to launch an internal investigation. In the wake of the Ailes scandal, Fox News ousted the chairman and promised “zero-tolerance” for “behavior that disrespects women.” Less than nine months later, however, The New York Times reported that nearly $13 million had been paid out to several women over a period of 15 years to settle accusations of sexual harassment or inappropriate conduct against popular television host, Bill O’Reilly.

Through these scandals, Fox News has illustrated how quickly the actions (or inactions) of a few can negatively impact an organization as a whole. A 2015 Cosmopolitan survey revealed that one-third of women between the ages of 18 to 34 suffered some form of sexual harassment at work, a staggering statistic. Sexual harassment remains a chief concern in today’s workplace, and organization leaders need to remain vigilant.

While the Fox News scandal has made for salacious headlines and prurient rumor-mongering, there are concrete takeaways from these shocking events for all organizations. Below are our top four tips for implementing and enforcing a sound sexual harassment policy.

Have effective workplace policies in place . . . and enforce them. Unless you presently work in the Technodrome, it is likely that the conduct and behavior within your organization is governed by an employee handbook. Generally, sexual harassment can be divided into two categories: (1) quid pro quo and (2) hostile work environment. Quid pro quo is when someone with supervisory authority asks or demands sexual favors from a subordinate in exchange for a promotion or favorable treatment. Hostile work environment is a little more difficult to define, but boils down to an employer fostering a work environment in which inappropriate comments or actions are tolerated. Effective workplace polices and uniform enforcement are an organization’s first line of defense against sexual harassment. Polices should include: (a) a complete description of both types of sexual harassment with examples; (b) a formal and easy to understand process for lodging sexual harassment complaints; and (c) a defined procedure for investigating complaints. Sound policies should also emphasize a zero-tolerance attitude towards sexual harassment, including timely reporting of inappropriate conduct and assurances that those who file a complaint will not face retaliation. Not having sound policies and/or lack of enforcement is the fastest path to an Equal Employment Opportunity Commission complaint.
Training. Mark Twain once said, “Training is everything. The peach was once a bitter almond; cauliflower is nothing but cabbage with a college education.” Produce aside, Mr. Twain was spot-on, training IS everything. Any organization looking to implement and enforce a sound sexual harassment policy should embrace this phrase will fail if employees are oblivious to its application. First, an organization should identify and train those individuals in charge of handling sexual harassment complaints. Those individuals should familiarize themselves with applicable EEOC guidelines and procedures for mobilization once a sexual harassment complaint has been registered. Next, the organization should train all employees on how to identify and report harassment in the workplace. Finally, the organization should train those in a managerial or leadership position to immediately report complaints of sexual harassment. Training should provide employees with the understanding that sexual harassment will not be tolerated. Regular training sessions and review of sexual harassment policies are vital to an organization’s culture, and training can foster a more cooperative and respectful working environment and reduce the likelihood of inappropriate behavior.
Conduct meaningful investigations. Upon receiving a complaint of sexual harassment, the organization is on notice and should immediately initiate an investigation. The organization should train managers and supervisors to immediately report all complaints of sexual harassment to a human resources professional. Those tasked with investigating the complaint should document their interactions with the complainant, take a statement from the complainant and ask for the names of anyone who might have witnessed the alleged conduct. Further, the organization should conduct timely interviews with any identified witnesses. The investigator should document all interviews and, ideally, have the written memorization signed by the witness. The fact-finder should remain neutral during the investigation, taking great care to collect information and conduct an unbiased inquiry. If the complainant and the accused work in close proximity to each other, the organization should take temporary remedial action and separate the parties during the investigation. If separation is necessary, the organization must not place additional responsibilities, change titles, decrease pay or benefits or take any additional action on the complainant that could be viewed as retaliatory. The complainant should be assured they will not face any retaliation, but it is not practical for an organization to offer complete confidentiality during the investigation process.
Take appropriate corrective action and be consistent. If the investigation yields a finding of wrongdoing, an organization has an obligation to administer swift and appropriate discipline. For minor offenses, violators should receive a written reprimand and additional sexual harassment training. More severe violations or repeat offenders should be subject to termination. Investigations and punishment should be uniform and consistent.

They say variety is the spice of life, but when it comes to sexual harassment investigations, keep it vanilla. After publicly renouncing Roger Ailes conduct, Fox News continued to employ Bill O’Reilly.

Fox News was clearly inconsistent with its investigations and policy enforcement, and was seemingly more concerned with revenue then taking corrective action. It took a mass exodus of sponsors leaving “The O’Reilly Factor” for Fox News to terminate O’Reilly’s employment. When it comes to investigations and enforcement, be consistent and do not show favoritism.

While “Fair and Balanced” might make for a catchy network slogan, Fox News arguably demonstrated neither in the way it handled its sexual harassment crisis. Organizations can learn from these missteps and adopt a formal, easy to understand, consistent and effective sexual harassment policy.

There is no way to “spin” it: it is crucial for organizations to proactively foster a respectful work environment that is free from harassment and inappropriate conduct. Taking the proper steps now could save an organization in the future.

Seth Berenzweig

is a founder and Managing Partner of Berenzweig Leonard. He has extensive corporate and litigation experience, and handles transactional and business matters for companies, executives, entrepreneurs, athletes, artists and media analysts in the Washington, D.C., region and nationally. Seth regularly appears in the national media to discuss business, litigation, sports and white collar matters, and is a frequent guest on national television networks discussing breaking legal news and cases impacting businesses. Seth has represented athletes and artists in the entertainment field and is a member of The Recording Academy and the National Academy of Television Arts and Sciences. He can be reached at sberenzweig@berenzweiglaw.com or at (703) 760-0624.

Drew Smith

is the Director of Professional Sports Law at Berenzweig Leonard and also assists the Employment & Labor Law practice defending the firm’s corporate clients against EEOC complaints. Drew’s practice focuses on representing both current and former athletes, broadcasters and public figures, as well as handling commercial contracts, corporate transactions and current and former business litigation matters. He also works with the firm’s entertainment law practice, and helps individuals and businesses operating in the professional sports industry protect their contract and intellectual property rights and helps them grow new businesses. He can be reached at dsmith@berenzweiglaw.com or at (703) 940-3408.