Fox News has had a rough year, at least from a legal and public relations perspective. The network's problems have been well documented, including multiple complaints of sexual harassment, several settlements (including a federal investigation into the payments) and the departure of its largest draw, Bill O'Reilly.
It was also reported that Fox has been hit with another lawsuit in early May, this time by a former employee who claims that she was terminated within 24 hours of making a complaint of sexual harassment. The former employee, Jessica Golloher, claims that in April, a Human Resource executive from Fox News emailed employees of the company and encouraged them to contact, among others, a lawyer for a firm representing the company if they had complaints about workplace behavior. In response to that email, on April 17, 2017, Ms. Golloher sent an email to the lawyer, conveying a complaint about harassment. Less than 24 hours after sending the email Golloher was told that her position was being eliminated because of “budget concerns.” Golloher is asserting that the actions of Fox News are clear retaliation, and the network is denying that it did anything wrong.
If the claims made by Ms. Golloher are true, Fox News could find itself liable for damages, not necessarily because of harassment or discrimination, but rather because of retaliation.
Retaliation is discussed less frequently than discrimination or harassment, but it is, in our experience, very common in the workplace. Employees who complain about harassment or discrimination often find themselves frozen out by their employers, who frequently cite things such as “position elimination” or “budgetary concerns” as justification for their actions. The problem, however, is that when an “elimination” or “budgetary concern” arises only after an employee complains about illegal conduct, it can be considered a “pretext” for the actual motivation – getting rid of a problem employee who complained.
The timing of the employer's actions is often considered significant in retaliation cases. In the Fox News case, for example, the fact that the employee was fired within one day of complaining could be a problem for the company. In that case, one of the critical issues will be if and when the network actually considered eliminating the position for budgetary reasons.
The Timing of the Employer's Actions is Often Considered Significant in Retaliation Cases.
If, for example, the company has a series of memos or internal communications reflecting that the position elimination had been in the works for several weeks or months, the timing issue will be diminished. If, however, records indicate that the elimination was either not considered prior to the complaint, or was considered and abandoned prior to the complaint, the company could find itself in hot water.
Employers, and large companies, generally have very clear policies when it comes to termination of employment. And often when an employee is laid off seemingly on a whim, particularly where that employee has recently made a protected complaint, the actions of the company have a difficult time holding withstanding scrutiny.
If you have questions about retaliation or discrimination contact us today.