August 10, 2020

Social media has been lighting up in recent weeks with stories about life behind the scenes on the Emmy Award-Winning talk show, “Ellen.”

The tales range from stories of rude behavior, to hostile working conditions, racism and sexual harassment. Despite her squeaky clean image as America’s fun-loving, dancing talk show host, current and former staffers report a workplace that is anything but fun-loving.

For her part, DeGeneres, who has hosted the show since 2003, has claimed to be largely unaware of what was happening on set. In a written statement, she said: “As we’ve grown exponentially, I’ve not been able to stay on top of everything and relied on others to do their jobs as they knew I’d want them done. Clearly some didn’t.”

That brings us to the important legal question at the center of this story that all employers should consider: Is, “I didn’t know what was happening” a legitimate defense in the face of claims of workplace misconduct? The short answer is, no.

The U.S. Equal Employment Opportunity Commission (EEOC) spells out in no uncertain terms the responsibility of an employer in these types of situations, saying:

The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages.

If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.

If even half of the stories being reported are accurate, it would seem that under these guidelines, Ellen, and/or Warner Bros., which owns and produces the show, are exposed to some liability for the alleged instances of workplace harassment.

The takeaway for business owners looking to better protect their companies is this:

  • Have a strong employee handbook in place that is reviewed with every new employee and signed
  • Offer annual workplace training to prevent harassment of any kind
  • Have a clearly outlined procedure whereby employees can safely report any issues
  • Follow up swiftly and equally on all reports of workplace misconduct
  • If you can’t oversee your operation, install trusted leaders who will ensure your workplace is free of harassment of any kind

If you have concerns about your own organization’s preparedness, contact a labor and employment attorney to review your current practices and make sure you are protected from the potential devastating fallout of a toxic workplace.

To read more about the allegations on the Ellen Show, click here.

To further study the EEOC rules, click here.

B. Kevin Burke Jr. is an attorney with Gross Shuman, P.C. He focuses his practice on the litigation of contract disputes, labor and employment issues, intellectual property protection, and trade secret cases. He can be reached at 716.854.4300 ext. 292 or kburke@gross-shuman.com.