A Text Message Threatening an Employee Reporting Harassment is Unlawful Retaliation in Business and at Work

In my HR travels of more than 25 years, it never ceases to amaze me how (inadvertently) thoroughly employees – even worse, managers and executives – violating company policy (as well as state and federal laws and regulations) document their own violations in voicemails, emails and text messages.  At minimum, it makes relatively short work of investigating and immediately taking action as a result of those violations.

The latest example: the firing of the producer of the CBS program 60 Minutes for sending a text message threatening a CBS reporter’s employment for investigating harassment issues, including but not limited to his own workplace conduct.  From the New York Times:

Jeff Fager, who was only the second person in 50 years to oversee “60 Minutes,” was fired for sending a text message that threatened the career of a CBS reporter, Jericka Duncan, who was looking into allegations of sexual harassment leveled against him and Mr. Moonves.

CBS News had put together a team, including Ms. Duncan, to report out the allegations against Mr. Moonves and others. On Sunday, Mr. Fager replied to an inquiry from Ms. Duncan by warning her to “be careful.”

Fager’s text message to Duncan, also from the New York Times:

“There are people who lost their jobs trying to harm me, and if you pass on these damaging claims without your own reporting to back them up that will become a serious problem,” Mr. Fager wrote in a text message, which CBS News aired on Wednesday’s “Evening News” in a segment reported by Ms. Duncan.

From the federal Equal Employment Opportunity Commission (EEOC) website:

3. What type of EEO activity by an applicant or employee is protected from retaliation?

Generally, “protected activity” is either participating in an EEO process or reasonably opposing conduct made unlawful by an EEO law.

4. What does it mean to “participate in an EEO process”?

An employer must not retaliate against an individual for “participating” in an EEO process. This means that an employer cannot punish an applicant or employee for filing an EEO complaint, serving as a witness, or participating in any other way in an EEO matter, even if the underlying discrimination allegation is unsuccessful or untimely. EEOC’s view is that this extends to participation in an employer’s internal EEO complaint process, even if a charge of discrimination has not yet been filed with the EEOC.

Simply put: Fager violated the law (not just CBS policy) with his text message to Duncan. CBS – like any other employer who must take immediate action under state and federal law and regulation to immediately stop workplace harassment – followed the law. Moreover, a violation of law and regulation by an organization’s executives and managers is gross / willful misconduct, subject to immediate termination of employment.

How do you ensure that employees at every level in your organization do not engage in unlawful retaliation, in business and at work?