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Paul Millus Featured in Long Island Business News' Cover Story, "Out-Foxing Sexual Harassment"

May 16, 2017Litigation & Dispute Resolution

Media Source: Long Island Business News

The recent shakeup at Fox News, in which highly rated on-air personality Bill O’Reilly was fired amid sexual harassment allegations and Co-President Bill Shine subsequently resigned, shone a spotlight on sexual harassment in the workplace.

While their situations may not be as high-profile as Fox News, many companies grapple with sexual harassment issues each year. In fiscal year 2016, 12,860 sex-based harassment charges were filed with the U.S. Equal Employment Opportunity Commission.

“There is nothing unique about the Bill O’Reilly case that changes the law or the way we look at the law,” said Paul Millus, a member in the litigation and employment law department at Meyer, Suozzi, English & Klein in Garden City. “There are thousands of harassment cases in the courts across the country. But the lesson from the Fox case is that if you allow this behavior to fester, it can take down your company or change the management structure. If there is a concentration of claims in a company, particularly high-profile ones, it can change the very nature of the company.”

The latest executive shuffle at Fox News follows last year’s departure of then Chairman and CEO President Roger Ailes, who also left amid alleged sexual harassment violations.

“The fish stinks from the head down,” Millus said. “It appears, at least to public consumption, that there was a culture that was allowed to fester and foster discriminatory behavior. Not only did you allegedly have people acting inappropriately, but you had people allegedly condoning it.”

The lesson, according to Millus, is: “If you have a complaint, even if it’s against a top producer or a well-liked manager, and you allow it to fester it will grow as a cancer and do very harmful things to your company.”

The Fox case has generated new conversations about an old issue.

“I’m hoping the lesson that will be taken from this situation is that companies need to make clear to everyone in their organization that sexual harassment will not be permitted as part of the corporate culture,” said Kimberly Malerba, who chairs the employment law practice group at Uniondale-based Ruskin Moscou Faltischek. “Corporate culture is set at the top. If the top people are not following the rules, the midlevel and lower-level managers and others are not going to believe the company believes in anti-harassment standards.”

Companies that don’t have a sexual harassment policy or who haven’t revisited their policy for a long time “should talk to a lawyer immediately,” Millus said. “It doesn’t take that long and it’s not that expensive. It’s a lot cheaper than the alternative.”

An attorney, he said, can look at the employment handbook to see if there is an effective anti-harassment policy in place.

“About 50 years ago, employee handbooks were simple documents that told you about things like vacation days and dress code,” Millus said. “Today, employee handbooks are much more important documents that apprise employees of what is expected of them, which includes abiding by the law, including but not limited to harassment.”

The handbook should also contain a fair and reasonable policy for making and investigating a claim, including an appeal process.

Setting up the right policy is only the first step, said Domenique Camacho Moran, an employment and labor law partner at Farrell Fritz in Uniondale.

“The second step is ensuring the proper response when an employee raises a concern or when management observes bad behavior,” Moran said. “In my view that response has changed dramatically in the last 20 years. Employers are much more likely today to take appropriate action when someone raises a concern.”

Managers, supervisors and other employees should be trained based on the prevailing case law related to harassment and other unlawful workplace practices.

“If you go before a jury, and you’re asked if you ever received anti-harassment training, every juror who has been in one of those training sessions, whether boring or not, knows they happen,” Millus said. “If your company fails to advise its employees in this area, it’s not going to look good.”

Employers must establish a regimen by which claims will be investigated, which may be done either internally or through an outside firm.

“Fox, which has unlimited funds, went to a third party, to a highly respected law firm that had no dog in the hunt and was unbiased in its findings,” Millus said. “Not every company can afford to do that.”

But when high-level executives are the alleged wrongdoers, it can be difficult for the company to handle the investigation in-house.

“The person below that person in the hierarchy may be responsible for dealing with the investigation – such as the HR director investigating the CEO, which is an awkward situation,” Malerba said. “You may need a third party to come in.”

Typically, Fortune 500 companies have the most sophisticated policies in place, while companies with about 100 or more employees tend to have effective policies as well.

“A lot of times it’s the smaller companies that don’t have policies in place,” Malerba said. “But regardless of size, a company should have a proper complaint procedure in place, not only so they can address a particular issue and avoid a pattern of harassment, but also so they can avoid legal liability. If the company does not have a harassment policy in place or doesn’t follow it, they have a significant hurdle to overcome in the event of litigation.”

Having to pay damages is only one of several potential costs to a company that allows harassment.

“If you end up with a pattern of harassment such as in the Fox situation, it hurts your culture, reputation and good will,” Malerba said. “It’s also bad for morale – if you have a corporate culture in which people are uncomfortable, ultimately it’s not good for productivity.”