Episode 308:Fox News and Sexual Harassment

You may have heard recently that Fox News is being sued. Granted, Fox News is being sued for lots of things right now, but today on What The Hell Just Happened?!, Paul Edwards and Solution Center Advisor Moriah Ochoa are discussing Laura Luhn’s sexual harassment lawsuit against Fox. This lawsuit was only able to be filed because the state of New York recently passed the Adult Survivors Act, which gives victims of sexual assault a 1-year window to sue for damages regardless of whether the statute of limitations has expired.

More and more laws like this are being passed, and an employer who knows (or should have known) about an incident of sexual misconduct and doesn’t handle the situation appropriately can be sued just as easily as the employee who actually committed the offense, so your policies on investigating and handling sexual misconduct need to be up to snuff.

Transcript

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

Moriah: Hey, Paul. How are you?

Paul: I’m doing pretty good. I’m sitting here looking at your water thermos, I assume is where it could be vodka for all I know. I’m hoping it’s not vodka because we are.

Moriah: Half and half.

Paul: Day.

Moriah: And it’s 2:00.

Paul: It is 2:00. So is it the ratio of vodka goes up? It’s day four. That’s right. And I’m looking at your terms and you have an awesome sticker on it where Wednesday the character is drinking male tears from a bottle.

Moriah: Yeah. Oh Wednesday is so trendy right now. But I got that sticker years ago.

Paul: I kind of love the character. I like the show.

Moriah: Yeah. I’ve always liked that character. Family is fun.

Paul: Yeah. A little shout out to my niece who’s I think 16, 17 years old now. You know, maybe I think she may have just turned 17.

Moriah: Wow.

Paul: She’s Wednesday.

Moriah: I was not delightful at that age. She’s that much.

Paul: She’s delightful and talented.

Moriah: And for you.

Paul: And she kind of has that same kind of dark darkness about her. Yeah. Yeah, she’s pretty awesome. So we’re here today to talk about something H.R. related, I assume. Are we?

Moriah: Well, I thought you might be interested in talking about this on Fox News. They’re being sued.

Paul: No.

Moriah: Yeah, they are. So and I actually, this kind of connects to a recent New York regulation that was released, the Adult Survivors Act. Huh. And so this was passed to suspend time constraints on claims involving sexual harassment and sexual offenses in the workplace.

Paul: Gotcha.

Moriah: That’s kind of on the heels of that 2019 extension of the statute of limitations. But it really is intended to, you know, encourage people to come forward.

Paul: OK, so let me break this for everybody who’s listening Mariah is talking about something totally that you all kind of understand is that when a crime is committed a clock generally starts ticking and at some point nobody can come after you for the crime.

Moriah: Right. And previously in New York, the statue of limitations was one year.

Paul: Oh, wow. For what kind of crime?

Moriah: Workplace sexual.

Paul: OK, for workplace sexual harassment. You know, they passed the Lilly Ledbetter Act because of the same kind of statute of limitations whereby Lilly had been discriminated against in pay and in being advanced inside of the organization that she was in, which I think was a good year. And she found out about it that her retirement, someone in H.R. said, I don’t know if you know it or not, Lilly, but there are men who have been working here doing your exact same job for less than a year, who are making twice as much money as you.

Paul: Oh, my. And Lilly was rightfully upset and found out, unfortunately, that she could not sue. It went all the way to the Supreme Court because the statute of limitations had run out and the law was written that you had to file the complaint within, I believe. Don’t hold me to this. Seven years of the first occurrence of it, not of your discovery that it happened, but she would have had to have known that she was.

Moriah: Because of the offense. Yes.

Paul: On the first day that it happened some 18 years ago. And then the clock began to tick and then Congress came back and rewrote the law and the rule. And now we have the Lilly Ledbetter Act, which protects people, particularly women, against discrimination in pay.

Moriah: Yeah. And I think, you know, a lot of this comes on the heels of all of the media attention around the MeToo movement. But, you know, we see many states echo and regulations like this when we see larger states like California and New York, you know, engaging and extending protections like this. Right. And there’s more awareness right now, you know, Modernly about, you know, the fact that there’s a lot of fear of retaliation and discrimination and shame surrounding these issues.

Moriah: And then it takes a time for victims to come forward. And sometimes even reconcile with those offenses that happened. Right.

Paul: Right. So Fox has gotten themselves in trouble. And I think most of the news agencies have experienced something like this in the last five or six years.

Moriah: Right.

Paul: We just noticed that people in power are kind of abusing their power and this is another example.

Moriah: Yeah. And it totally is. Exactly. Paul it goes hand-in-hand with that discussion about positions of power and supervision, especially when you’re dealing with, you know, something that’s nationally visible like that. But, you know, in this situation, the offender. There were actually previous reports of multiple women involved and he did wind up resigning. But even in light of that resignation, she is still suing the employer.

Moriah: Right. And, you know, when we talk about even regardless of that employee resigning in light of these allegations that employers still have an obligation to create and maintain a safe and healthy work environment. Right. Right. And when they have knowledge of something going on, especially when there are documented reports of allegations of harassment, you know, we start to talk about vicarious liability and strict liability.

Moriah: Right. When you know about those things occurring and your liability increases, with future allegations or future incidents.

Paul: Right. So, you know, how this can play out is if you go to your if you’re a member of seeder and you go to your employee handbook, you’re going to find a few statements in there that are pretty important. And they can protect you, but they can’t protect you from everything in the statement. It is that if something’s and I’m going to generalize it, if something’s going on, you have an obligation to tell us because we can’t fix something that we can’t that we don’t know about.

Paul: Absolutely. So that’s the first level of it. And the second level of it is, is that if you bring this to our attention we will not retaliate against you for bringing it to our attention. Now, there’s a lot in between those two things that we could rabbit hold down on and talk about. But just in general, that’s the protection that we put in place was every single business that we work with because the money is in the retaliation side of it.

Paul: On the front end of it, someone being sexually harassed at work probably could carry some kind of fine or something, but it’s very limited. But if you don’t do anything about it or worse, you retaliate against someone because they brought it to you in good faith, then you can really find yourself behind the eight ball.

Paul: Did Fox do anything, did she remember, did she quit? Is she saying she had to quit at some point because it was not tenable and she was not being treated well and she was being harassed and she and she quit or did she report it to Fox to do something to her?

Moriah: The article I read did mention that she stepped down from a position somewhere in this timeline. 

Paul: Right. 

Moriah: But, you know, she did not bring up the allegations to her employer. And so even the silence during her employment does not mean that she can’t take action against her employer at this time. And, you know, even with those disclaimers and that legal compliance language within a handbook, it’s still so important for employers to take every allegation seriously, conduct that in-depth investigation process to determine what’s really going on and where are, like you said, where their liability and obligations are moving forward really lie.

Paul: So practice and pattern, it’s one thing for us to put the protection in place for you and put the proper statements in so that you can get behind them as a and kind of I don’t say hide behind them, but use them in the in the manner they should be used, which is you didn’t tell us that this was going on.

Paul: But in this case, if you look at the practice pattern, I think what she’s saying is you were told about this guy. I may not have told you about him, but other people I have discovered told you about him and you didn’t do anything on their behalf. And, you know, unbeknownst to me, you let him stay. I got subjected to it. And you don’t get to blame me for something that you knew about.

Moriah: Yes. And now with the Adult Survivors Act, there’s no limitation on her taking action against her employer. Right. And, you know, like I said, that it’s likely that we’ll see some of those statute of limitations amended in other states as well.

Paul: Yeah. You know, where this plays out in real life among our members is and I’ve seen this play out, by the way. I remember an instance: gosh, it’s been a decade ago. We had an associate make a comment to an employee and a satellite office. So that’s what happens is our a lot of our businesses that we work with over at Cedar, they they, you know, open up other offices and you end up with other people in those offices, associates in those offices.

Paul: And the associate made a comment to one of the employees that she would love to get her in the x-ray machine.

Moriah: Oh, my.

Paul: And she was just talking about, you know, we I think we all know what she was talking about. And that employee did the best thing they could do for the business, which is she reported it to her manager. Her manager reported it to the owner. They put a call in and we had the associate suspended by the end of the workday around it, suspended with pay while pending our investigation.

Moriah: Perfectly permissible. Egregious. Yes.

Paul: Absolutely. And the thing is, the employee quit and the person said, I’ve been, it’s been going on. I told my husband he doesn’t want me to work here anymore. Now that I don’t have a job, I’m telling you why I’m quitting and so all kinds of steps were taken to mitigate that because she had a lawsuit.

Paul: And, you know, a lot of the lawsuit was made in a lot of ways because immediate action was taken, an investigation was placed. I can tell you in this instance, the associate always quit within three days. They resigned because they could see the writing on the wall and practice did everything they could to make it clear to that employee that she had a job.

Moriah: I love that example and how fortunate for that practice, for that employee to just resign it’s not always going to look like that. You know, when you engage and you apply some pressure, most often people are going to push back. Yeah. So, you know, and we talk about this investigation process as adding layers of protection to the practice moving forward.

Moriah: So even taking that first step and applying some pressure and telling employees that you’re going to be following up and conducting that investigation process, even if that doesn’t result in immediate resignation, which is ideal. Right. Admittedly, you know, it still results in a lot of layers of protection and documentation for the practice.

Paul: So I love that you brought this to us. This is in the news right now. It happens at every level out there. And no matter how big or small you are. So, you know, Fox is this big company and it’s easy to focus on them. But we see these kinds of calls and instances come in through the Solution Center all the time.

Moriah: We certainly do.

Paul: So just remember, it’s good to have the right policies in place if you’re someone out there who doesn’t know what I’m talking about, that’s another story. But your practice and pattern makes a difference and take things seriously and sometimes you investigate and find out there isn’t anything there. You still need that. You still need that right to show that you did your best and you got everything you could get.

Paul: And in the end, you found that there wasn’t a problem.

Moriah: Demonstrate a good faith effort too.

Paul: Yes, demonstrating good faith effort. I like that. That’s what this is about.

Moriah: Yes. All right. 100%.

Paul: All right. Thanks.

Moriah: Thanks, Paul. Yes, I was excited to go over that with you, Paul.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, and you’d like us to discuss it on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.

Mar 14, 2023

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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