Words spoken yesterday morning by Fox News personality Megyn Kelly during an interview by George Stephanopoulos on Good Morning America. Kelly was asked about the lawsuit filed by her former Fox News colleague Gretchen Carlson against former CEO Roger Ailes and Kelly’s own experiences with Ailes a decade ago. According to Kelly, and as described in her new book, Ailes sexually harassed her and tried to entice her to engage in a sexual relationship. She rebuffed his advances, called a lawyer and notified her immediate supervisor. The supervisor vouched for Ailes and told Kelly the behavior was out of character and also advised Kelly to “ignore him.” Kelly did just that, something relatively easy for her to do since she was assigned to the network’s Washington office and Ailes was in New York. After about six months of being ignored, Ailes moved on, and he and Kelly had a cordial and mutually beneficial professional relationship until he left the network.
When pressed as to whether she regretted not having come out publicly about his advances ten years ago, Kelly told a story remarkably similar to that which women in workplaces tell every day. First, she wasn’t sure that this wasn’t an isolated incident, especially given her supervisor’s statements and advice, which seemed to work. Second, in her eyes, she had no one to go to. She had barely a year’s tenure at the station, and Ailes, the CEO, was one of the world’s most powerful men. She had done more than many women in her place might have done, but going above Ailes’ head to the owners or going to the general counsel would have been “a suicide mission” for her career. She told Stephanopoulos the obvious, “I wasn’t the same Megyn Kelly then as I am now.”
Kelly’s responses are consistent with what many women who are victims of harassment say. Why didn’t she speak out sooner? Why didn’t President-Elect Trump’s accusers come forward years ago? They didn’t know there were others; they didn’t have anyone they could safely tell; they didn’t think they would be believed.
The stories of Carlson, Kelly and countless other female employees at Fox put an exclamation point on the findings of an EEOC task force which spent a year studying the issue of workplace harassment. They issued a report in June 2016, entitled “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace” which concluded that sexual harassment remains a significant workplace issue. Among a great deal of information, the Report provides practical resources, including checklists and a “risk factor” analysis, to help employers assess their organization and respond appropriately to troubling behavior.
Reviewing the risk factor analysis is a necessary first step for employers looking to address this important workplace issue. The task force focused on what they viewed to be environmental factors, organizational factors or conditions that might increase the likelihood of harassment rather than on the qualities that might lead one to be a likely victim or a likely harasser. The Report says:
Most if not every workplace will contain at least some of the risk factors we describe below. In that light, to be clear, we note that the existence of risk factors in a workplace does not mean that harassment is occurring in that workplace. Rather, the presence of one or more risk factors suggests that there may be fertile ground for harassment to occur, and that an employer may wish to pay extra attention in these situations, or at the very least be cognizant that certain risk factors may exist. Finally, we stress that the list below is neither exclusive nor exhaustive, but rather a number of factors we felt were readily identifiable.
What follows is a list of some of the risk factors identified.
- Homogenous Workforces: Sexual harassment of women is most likely to occur in workplaces with primarily male employees; racial or ethnic harassment is more likely to occur where one race or ethnicity is predominant.
- Workplaces Where Some Workers Do Not Conform to Workplace Norms: A feminine man in a predominantly male environment where crude language is common; a woman who challenges stereotypes by being “tough.”
- Cultural and Language Differences: Diverse workplaces where “blocs” of workers from different cultures congregate; workers may not know the cultural norms of the workplace or their rights and be subject to exploitation.
- Coarsened Social Discourse Outside the Workplace: Events outside the workplace like terrorist attacks and controversial elections may lead to discussions previously deemed unacceptable at work.
- Workforces with Many Young Workers: Young workers who lack the maturity to understand the consequences of their behavior; unskilled or inexperienced young people who may be taken advantage of.
- Workplaces with High Value Employees: Where some workers are viewed as highly valuable to the employer due to significant rainmaking or sales ability or particular highly sought after skills, there may be a reluctance to challenge poor behavior combined with a belief of the employee that the rules do not apply to them.
- Workplaces with Significant Power Disparities: Executives and administrative staff, military or hierarchical organizations, the lack of knowledge of how to report or the fear that reporting may lead to the loss of a job.
- Workplace Cultures that Tolerate or Encourage Alcohol Consumption: Reduced inhibitions, clients or customers feeling emboldened by alcohol.
- Workplaces that Rely on Customer Service or Client Satisfaction: Entities where compensation is directly tied to customer service or client satisfaction, a tipped employee or a commissioned salesperson.
Employers should challenge themselves to look at these and the other risk factors set out in the Report to determine whether they are at risk for harassment issues. They should review not only their policies, but how their policies are implemented and whether employees, including high level management employees, are held accountable for their behavior. Not only will such self-examination reduce the risk of litigation, it is good business with a direct link to recruiting and retaining talented and motivated employees.