In 2016, the Equal Employment Opportunity Commission (“EEOC”) handled 26,934 Charges of Discrimination for individuals that believed they were discriminated against because of sex. This number does not even include the number of individuals who filed at a local state agency. Sex discrimination occurs when a woman is subjected to different or unequal treatment when that treatment is because she is a woman. It can include being passed over for a promotion, being subjected to harassing comments, or being asked to provide sexual favors in exchange for advancement at work.
I have personally talked with hundreds of women who do not want to come forward with allegations of sexual harassment. These women tell me that they do not think the company will believe them or they think that the company will retaliate against them. I wish I could tell them it will not happen—the truth is, it might.
Mr. O’Reilly started at Fox News as a television host in 1996, was reported as a sexual harasser as early as 2004, but was not terminated until 2017. The rationale: he’s got the ratings! Many “big money makers” for companies enjoy the shield of protection when it comes to being held accountable for harassment, discrimination, retaliation, or just being a jerk.
Companies often make things worse. Instead of doing the right thing, Fox News paid $13 million to five women starting as early as 2004. Fox News likes to suggest that they “take workplace matters very seriously,” but $13 million suggests that the only thing Fox News took seriously was covering these matters up. I have represented companies for over eight years and like any other labor and employment lawyer that you speak to in this area, there are very few cases that settle for that amount of money. If a case is settling for that amount, it is usually indicative of large problems with the employer. These women signed a settlement agreement that instructed them to keep quiet in exchange for the settlement. As a result, other women that had similar problems with Mr. O’Reilly would never know that he was a repeat offender. If they were fearful about reporting him, they did not have any idea that they were not alone.
After his exit, Mr. O’Reilly said, “I was very surprised how it all turned out.” Well, I am surprised that it took five women to come forward for Fox News to act—and that is the conundrum. If the New York Times never reported the story, we would never know that this was an issue and Mr. O’Reilly would never have been terminated from Fox News. That’s the problem in many workplaces. A woman reports harassment, but a “confidential” investigation concludes that there is no harassment. She is unable to review the report of the investigation and she is often returned to the same department to work with the same harasser that engaged in the conduct in the first place. And, to make it worse, Fox still honored Mr. O’Reilly’s contract and allowed him to walk away with $25 million.
So, what does this mean for women in the workplace? I would say the following:
- If you have an issue with a man harassing you in the workplace, find out whether it is happening to other women and report it together. There is strength in numbers. Even if you report it on your own, you may want to turn to other women you know to help walk you through the work politics that will result from the report. Also, as you report it, be very specific about how this harasser’s behavior is affecting the company’s bottom line (i.e. you spend an hour listening to his harassing comments rather than working). Companies are much more likely to respond when they know it will affect their income and reputation.
- If you believe you are being harassed, take good notes about what happened, when it happened, who was there, and what your response was. If you get to a point where you think you may want to act, find a local lawyer that specializes in labor and employment to give you some advice on how to move forward. Also, keep in mind that you may not receive a windfall settlement just because you come forward. I have seen statistics that state that sexual harassment claims average around $30,000 for settlement before trial and around $50,000 after a trial.
- Speak up. Be bold. If anything, these types of discoveries empower us as women to know that we are not alone in fighting harassment and discrimination. Maybe one woman could not take down Bill O’Reilly, but five women plus a determined female reporter that O’Reilly once insulted were able to bring him to his knees and hit him where he hurts – his pocketbook.
The workplace may not change immediately for women, but as women continue to educate themselves about their rights in the workplace – the right to be paid equally, the right to come to work and not be harassed, or discriminated against, or retaliated against. It is with that information that we can start to demand what we are due. As Michelle Obama once said, “[n]o country can ever truly flourish if it stifles the potential of its women and deprives itself of the contributions of half of its citizens.” We must learn to support other women in the workplace. We must be the change agents for equal rights and keep holding employers accountable. We must learn to speak up and advocate for ourselves. Our families and our country are waiting. They are waiting for us to stop being silent.
If you want to know more about your rights in the workplace, visit the EEOC website for more information: www.eeoc.gov.
This article is not legal advice. For more information about specific situations, please speak with a local attorney who is knowledgeable about Labor & Employment law.
Anita Barksdale is an 8-year attorney who has been rated three times as a Rising Star Thomson Reuters Super Lawyer in Texas for Labor & Employment. She assists companies, but also individuals in resolving labor and employment matters.
You can follow her on twitter: @anitabarksdale or visit her website: www.anitabarksdale.com for more information.