Gretchen Carlson: Protect Harassment Victims

Global HR

Broadcast journalist Gretchen Carlson dropped a bombshell in 2016 when she went public with sexual-harassment charges against Fox News Chief Executive Officer Roger Ailes.

She was demoted and fired, she alleged, because she rebuffed Ailes’ sexual advances and complained about workplace harassment. Ailes left Fox two weeks after she filed suit, and Carlson received a public apology from Fox and a $20 million settlement.

During the closing general session of SHRM INCLUSION 2021, Carlson and Emily M. Dickens, J.D., corporate secretary, chief of staff and head of government affairs at the Society for Human Resource Management (SHRM), talked about how to create harassment-free workplaces.

HR professionals “have an important responsibility to safeguard the lives and livelihoods of workers,” Dickens said in introducing the discussion. “We know social issues and challenges often become workplace issues and challenges. We also know many of these challenges can be overcome by a healthy and inclusive workplace culture” and that it is important to “push back to move forward.” 

Carlson is working to rid workplaces of
mandatory arbitration agreements as a response to harassment claims. Arbitration is a legal tool used to resolve disputes and is governed by a contract between two parties, such as an employee and employer. A retired judge or attorney makes a binding decision that is subject to a limited court review.

She said arbitration is a practice that prevents individuals who have been sexually harassed from getting their day in court. Carlson supports national legislation to end forced arbitration of sexual-harassment claims and recently co-founded the nonprofit Lift Our Voices, which is dedicated to ending nondisclosure agreements (NDAs) and forced arbitration.

Carlson and Dickens’ discussion of arbitration agreements prompted some online chatter among virtual conference attendees. One attendee hypothesized that new hires may not realize what they are signing or may think it will not apply to them. Another noted signing such an agreement often is a prerequisite to being hired. Employees who sign employment contracts with mandatory arbitration provisions waive their right to a civil trial but retain access to the individual remedies afforded by the Equal Employment Opportunity Commission.

One attendee said in the chat that arbitration is no longer mandatory at her organization; it is an option if both parties want it. Another attendee suggested that a grievance process can be helpful for all employees, whether or not they belong to a union.

Carlson’s settlement with Fox included an
NDA that barred her from sharing details of the harassment she experienced. Such agreements are “silence chambers,” she said, and are harmful because they allow predators to remain in the shadows while targets of harassment are legally prevented from disclosing information about their experience.

SHRM supports pre-dispute arbitration agreements and believes employers must have the ability to enact policies and procedures that best meet the needs of their individual organizations, according to SHRM advocacy efforts.

SHRM stipulates that pre-dispute arbitration agreements for employment purposes have proven to be fair, effective and a less expensive means of resolving disputes compared to going to court. Arbitration has been recognized in federal law and reinforced in subsequent Supreme Court cases as an effective method of dispute resolution for over 90 years.

With legal costs increasing and overburdened court dockets, Congress should not eliminate an effective business practice that allows employers and employees to obtain timely and fair resolution of workplace disputes, according to SHRM government affairs staff.

HR’s Role

While HR professionals do not have the power to prevent their organization from using NDAs and forced arbitration agreements, Carlson urged HR practitioners to appreciate the courage it takes for an employee to come forward with harassment allegations.

“Most people are incredibly fearful to come forward,” she said. “There shouldn’t be lawsuits about [harassment],” which can end poorly for the complainant.

“Celebrate the person who is scared to death … and is telling you their truth and to no longer silence them,” she said. “The only way we’re going to make progress on this is to have open, transparent conversations.”

However, Carlson told Dickens organizations should take the responsibility of handling these toxic situations out of HR’s hands or otherwise reimagine how they are handled.

In an interview with CNN’s Anderson Cooper earlier this year, Carlson advised that
going to HR with a sexual-harassment complaint “is not always the best thing to do” because an inherent conflict of interest exists due to the fact HR are representatives of the company.

“It’s not a knock on HR professionals,” she told Dickens. “It’s a knock on a system that I think is broken,” because a company’s first reaction, she said, is that the complainant is seen as the problem and is demoted, blacklisted or fired as a result.

Dickens spoke up for HR professionals, noting, “These people work so hard every day to make a difference in the lives of the people they work with. … They’re often maligned when something doesn’t work out.”

She urged Carlson to tell stories about the good work that HR is doing: “We’ve got to hear those voices. They’re saving lives and saving careers, and people don’t hear those stories.” 

Carlson is the author of
Be Fierce: Stop Harassment and Take Your Power Back (Center Street, 2017) and
Getting Real (Viking, 2015).

Time magazine named Carlson among its “100 Most Influential People in the World”
in 2017. She was the central figure in a Showtime series “The Loudest Voice” and in the Oscar-nominated movie “Bombshell,” both based on her accusations of sexual harassment.

Other SHRM resources:

Harassment Today,
SHRM Online, October 2021
Talk Work Culture, SHRM resources and tools
Sexual Harassment Prevention Training for Employees, SHRM tools and samples

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