Fox’s Investigation of CEO Ailes Should Serve as Reminder: Be Objective

By Allen Smith, J.D. Jul 14, 2016
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Fox News Channel is investigating harassment allegations against CEO Roger Ailes. 

Fox News Channel host Gretchen Carlson's sexual harassment lawsuit against company President and CEO Roger Ailes leaves open the question of how to investigate "he said" versus "she said" circumstances. 

Carlson alleged that Fox News did not renew her contract in retaliation for her rebuffing Ailes' sexual advances. Ailes called her allegations false, and claimed that her contract was not renewed due to low ratings. 

21st Century Fox, the company that owns Fox News, has begun an internal investigation.

Investigation Pointers

So what should HR do when conducting this type of investigation?

Christine Walters, J.D., SHRM-SCP, a consultant with FiveL Company in Westminster, Md., recommended that HR should:

  • Remain objective. Don't jump to conclusions.
  • Consider whether you want to work independently or under the direction of legal counsel in order to keep your findings protected under the attorney-client privilege.
  • Have a logic as to whom you will interview first, last and in between.
  • Draft your core questions in advance, and share the same introductory and closing remarks with all who are interviewed.
  • Consider history, relationships, and motives for honesty and a lack thereof.
  • Identify a trusted sounding board, such as someone else in HR or legal counsel. 
  • If corrective action is warranted, look not only to your policy, but your past practice as well. 
  • Reassure every person whom you interview of the company's no-retaliation policy.
The first interview should be with the defendant, said Philip Voluck, an attorney with Kaufman Dolowich & Voluck in Blue Bell, Pa. Get a written statement from the defendant about the allegations, he said. 

Go through the employee's personnel file and see if there are any bad performance evaluations, Voluck added. 

There may be dozens and dozens of witnesses to interview. Give everyone you interview a copy of the organization's sexual harassment policy, and have each of them sign and date it, he recommended.

During the investigation, HR is "allowed to make credibility determinations," Voluck added.

Remember that the company is required not just to remedy any harassment, but to prevent its recurrence, Voluck emphasized. If the allegations about Ailes are true, "he's gone," Voluck added, "particularly because he's at the top." But, he added, Carlson may just be "a typical disgruntled employee seeking a piece of the pie."


The key to preventing harassment's recurrence, aside from having the right leadership in place, is training. 

HR should provide annual training to employees at all levels and to board members, said Michael Volpe, an attorney with Venable in New York City. 

Voluck said HR should encourage managers to walk around and be on the lookout for inappropriate behavior that may need redressing. If a manager hears someone say, "Hey, honey, how you doing?" for example, the manager should let the person know that employees aren't called "honey."

Keep It Confidential

Once an employee alleges harassment, an employer should notify any applicable insurer, Volpe recommended. Maintain confidentiality and carefully document the investigation and all records relevant to the allegations, he said. 

"Ailes should be treated like anyone else: A swift, thorough and independent Investigation needs to ​be conducted," Volpe said.

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