Should you take Gretchen Carlson’s advice on reporting sexual harassment?
© Lauren Aguirre

Allegations of sexual harassment at Fox News have been making headlines for months, with Fox television commentator Gretchen Carlson receiving a $20 million settlement in the wake of her claims of sexual harassment against the late Roger Ailes.

Carlson has now authored a book, “Be Fierce: Stop Harassment and Take Your Power Back,” in which she reportedly advocates against reporting sexual harassment claims to human resources. This tactic seems to have worked well for Carlson, as she was able to walk away with a substantial settlement. But is this case the exception or the rule? I believe it to be the exception and here’s why.

 

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First, the obvious: In Carlson’s case, the settlement that she received was staggeringly impressive. It can safely be predicted that the majority of single-plaintiff sexual harassment cases will not result in $20 million recoveries. Essentially, the likelihood of emulating Carlson’s case is extremely low.

Second, Carlson’s case involved extremely high profile personalities in both the plaintiff, Carlson, and the defendant, Ailes. Carlson was also very highly paid; additionally, Ailes and Fox News faced extraordinary risks if the case did not settle, which motivated them to settle efficiently. Those risks were not just monetary, but they threatened the very existence of the network, and undoubtedly the career and reputation of Ailes.

The third factor to consider in this case is that Fox was a “deep pocket” company with a highly toxic culture. The company also had a wholly ineffective Human Resources department that was more invested in protecting Fox and Ailes at the time, rather than undertaking an objective and thorough investigation of claims of harassment and discrimination.

The now-revealed lengthy history of sexual harassment and misogyny at Fox News that was perpetrated and perpetuated by the highest level officials and anchors at the network made it readily apparent that reporting to HR would be a futile act laden with inaction and the likelihood of retaliation.

So, if the tactic of avoiding reporting sexual harassment worked so well for Carlson, why report sexual harassment to HR? If your circumstances and employer conditions are similar to those Carlson found herself in, then perhaps her advice is valid. However, do not lightly discount the reasons to report to HR.

One critical motivator to report to HR is that the report gives your complaint credibility and legitimacy. It also documents the harassment with the HR department of the employer, and puts the burden on them to act. Failure to report almost always leads to companies claiming that the harassment cannot possibly be true because if it were, you would have said something while you were still employed. For example, Bill O’Reilly used this argument recently when discounting the claims against him.

The US Equal Employment Opportunity Commission encourages employees to report harassment to management at an early stage to prevent its escalation, which is an important point for anyone facing sexual harassment in the workplace. By reporting it in the early stages, it can often be stopped before the harassment escalates.

It is also important to note that reporting sexual harassment is considered “protected activity” under Title VII of the Civil Rights Act and under state and local laws. Therefore, employers are legally barred from retaliating against any employee who participates in a complaint process.

Courts have counseled that plaintiffs should follow reporting requirements in employee manuals. Some companies have detailed policies on reporting harassment that could include time limits for reporting. Following those reporting policies can be critical as you might significantly limit your legal recourse if you do not follow the company’s procedures.

So, is the decision to report sexual harassment to HR the right one for you, or should you follow Carlson’s advice? That depends on the circumstances of each particular situation. Unless your case shares strong similarities with Carlson’s own, reporting your harassment to your HR department is likely the best course of action.

 

Jay Holland is a renowned employment and whistleblower case litigator with Joseph Greenwald & Laake. He regularly counsels clients in individual and class action cases involving gender and race discrimination and sexual harassment, violations of the wage and hour law, and wrongful termination. Follow him on Twitter @jayhollandlaw


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