Toxic Cultures Require a Stronger Cure: The Lessons of Fox News for Reforming Sexual Harassment Law
55 Pages Posted: 17 Oct 2017 Last revised: 17 Sep 2018
Date Written: August 1, 2017
Fox News has been disrupted by a series of sexual harassment scandals that caused the departure of some of its top executives and anchors. The upheaval at Fox News came from public disclosure and social pressure after the actual laws prohibiting harassment failed to deter or stop the rampant abuse at the network. Legal scholars have previously identified the problems with federal harassment law that could explain why widespread sexual harassment occurred at the highest levels of Fox News. Specifically, the existing literature details how women are forced to report harassment nearly immediately, despite the many career-related reasons not to, and yet they are not fully protected against retaliation when they do report the harassment. Scholars have also documented that if a victim’s claims do make it to court, the standard for proving harassment is a nearly insurmountable burden to overcome. These identified weaknesses in the law would seem to explain why the law failed to act as a stronger deterrent to Fox News. Fox News, however, is headquartered in New York City, which has a more strongly worded local anti-harassment law: the New York City Human Rights Law. This law removes each of the identified problems in federal harassment law. The example of Fox News therefore demonstrates that, with entrenched harassing cultures, stronger anti-discrimination statutes that “fix” the identified weaknesses of current law are not enough. This article explains and advocates for two alternative means of strengthening harassment law: expanded use of systemic harassment claims and limits on the use of confidential settlements and mandatory arbitration agreements.
Keywords: sexual harassment, Fox News, harassment, Title VII, New York City Human Rights Law, NYCHRL, Gretchen Carlson, Roger Ailes, Bill O'Reilly, Andrea Tantaros, confidential arbitration, arbitration, confidential settlements, settlements, Uber, Weinstein
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