More re Andrea Mackris' sexual harassment claims against Bill O'Reilly and Fox, and their preemptive extortion claims

Switching from presidential to sexual politics, I'll post a few comments to supplement those in my previous post about the litigation involving Fox News, Bill O'Reilly, and Andrea Mackris.

First and foremost:  Obviously, I have zero personal knowledge of any of the relevant facts, nor of the individuals directly involved, nor of their counsel.  I know nothing beyond what I've read in their respective complaints (here and here) and some media accounts, and all of that I take with a large grain of salt.  My previous and current comments are made solely as punditry from a lawyer unconnected with the case.  I'm by no means a full-time specialist in this complicated and fast-changing area of the law, although I have represented both defendants and plaintiffs on fairly similar claims in presuit negotiations, administrative proceedings, and lawsuits.  And I've not tried such a case myself to a conclusion before a judge or jury, but I'm generally aware of the statutes and caselaw, and of the range of outcomes from such cases around the country.

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John Derbyshire's post on NRO's "The Corner" blog is fairly typical of the skeptical reaction many folks, including some of my readers (via email), have had to Ms. Mackris' claims.  (Mr. Derbyshire refers to having read Ms. Mackris' "deposition," by which I think he means her unsworn complaint, rather than the transcript of an oral examination of her under oath.)  I've heard similar arguments on talk radio, and I'm sure there are scads of blog posts on this general topic that I frankly haven't bothered to look for.

The fact that Mr. O'Reilly is not alleged to have had literal, physical sexual contact with Ms. Mackris is indeed important, as are the facts that she apparently suffered no adverse career consequences, made no complaints to Fox's management, returned to work for Mr. O'Reilly after her stint at CNN, voluntarily accompanied him to dinner on many occasions, didn't hang up on the phone calls, and so forth.  The degree to which she expressly and impliedly objected to, tolerated, or invited Mr. O'Reilly's conduct is likely to be a key factual issue.  So, too, will be the issue of whether Ms. Mackris was "setting up" Mr. O'Reilly and Fox.  The defendants will argue that she invited, even planned, all this; she'll argue, no doubt, that she was coerced into acquiescence and participation through explicit or implicit threats to her continuing employment, career, and reputation.

At a minimum, all these facts have a huge effect on the potential damages that she could reasonably hope to obtain, whether from Mr. O'Reilly or the other defendants.

Some of these facts are also keenly relevant to various defendants' potential liability for any damages.  To oversimplify a bit, if Fox — as the employer of both Mr. O'Reilly and Ms. Mackris — indeed (as claimed) had in place extensive policies prohibiting sexual harassment and requiring its employees to report its occurrence, that may end up negating Fox's liability, either under a "hostile work environment" theory or a respondeat superior-type (employer being liable for its employees' acts in the course and scope of their employment) theory.  Plaintiffs in Ms. Mackris' position oftentimes argue, sometimes successfully, that such policies were pretextual and ineffective, and that employers, through officers and supervisors of the alleged offender, knew or should reasonably have known of on-going violations.  Again, this is all grist for the mill of the pretrial discovery process for both sides, and ultimately for the jury.  The various witnesses' credibility, tested against the jury's common sense, is key.

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The interests of an employer and its employee accused of sexual misconduct can often sharply diverge.  There's almost always at least a potential conflict of interest that legal counsel should explain fully to both; and quite often, there's an actual conflict of interest, with the employer not only distancing itself from its employee and his actions, but actively pointing the finger at the employee as having violated company policies and concealed his doing so.  Obviously it's in the interest of the plaintiff's counsel to be aware of the conflicts, and it's quite common for plaintiff's counsel to actively encourage them, especially when the employee is himself a "deep pocket."  Were I involved on the defense side of this case, I'd insist that Fox and Mr. O'Reilly have separate defense counsel of record — even if Fox, at least initially, may end up paying for Mr. O'Reilly's separate counsel, and even if all of the defendants hope and expect to cooperate closely and present coordinated defenses.

I stand by my earlier criticism of Fox's pre-emptive legal strike.  It bears all the hallmarks of clients who are letting short-term public relations considerations override long-term strategic and tactical legal judgments.

But I do not mean to imply by that criticism that I think Fox or Mr. O'Reilly should necessarily roll over and play dead — get out their checkbooks and write the eight-figure checks Ms. Mackis and her lawyer are demanding.  I seriously doubt that their inflated presuit demand constitutes criminal or civil extortion, strictly speaking, but that doesn't mean that the demand was reasonable, even if the quotations and conduct attributed to Mr. O'Reilly are factually accurate.  That there are counterpunches, and perhaps even knockout punches, that may be thrown still doesn't mean you should lead with your chin, and that's what I think Fox and Mr. O'Reilly have done here.

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Finally:  I've been fascinated with sexual harassment claims for almost as long as I've been fascinated with sex.  The seminal (don't snicker) book on the topic was Catherine MacKinnon's Sexual Harassment of Working Women in the late 1970s, on which I commissioned what turned out to be a very fine, substantive book review (briefly abstracted here) from UC-Berkeley Law Professor Herma Hill Kay when I was the book review editor of the Texas Law Review in 1980.  A quarter century later, there's often still a profound disconnect between folks' real-life experience and what happens in the courtroom on these matters.  "I see this every day" and "I've endured worse and never complained" and "Of course some co-workers are going to have romantic encounters" are heartfelt and widely shared sentiments.  Artful flirting is the seed for every romance, and there are huge risks, in and out of the workplace, for artless misinterpretations.  And political correctness can be, and often is, carried too far.

But sex, money, and power are potent motivators and, sometimes, weapons — sometimes weapons of mass confusion.  The same folks who'll make the above-listed sorts of arguments around the water cooler or calling in on a talk radio show often find themselves magically, mystically transformed when they're ushered into the cool marble sanctuaries of a courtroom, solemnly sworn to follow the court's instructions, and then set to deliberating on particular factual situations.  Very often the decisions in these cases — and as a result, the terms on which the vast majority of such cases are settled before trial — reflect not what actually is common in the workplace, but what we, collectively, as a society aspire to see in the future.

If the quotations and conduct attributed to Mr. O'Reilly are accurate (a huge if), and if he knew or should have known that they were unwelcome (another huge if, and one that seems to me to be more likely to be hotly disputed), then he's very likely — under current law, and by an average jury interpreting it — to be found liable for at least some amount of damages under one legal theory or another.   Even if his words and conduct were invited — even if she "set him up" — then he's at fault for "falling for it," for putting himself in a horribly embarrassing and likely a career-destroying situation.  Yes, workplace romances and sexual situations are dirt common in the real world in which we all live.  But whether this was one or not, there are, and there have been, terribly exploitative situations that the courts are now addressing.  Anyone in a supervisory position over a co-worker is playing with fire when he — or she — initiates or responds to sexual or romantic overtures.  If the quotations attributed to him are in fact on tape, then the question probably isn't whether Mr. O'Reilly's going to get burned, but rather, how badly, and who else will get burned with him.

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Update (Sat Oct 16th at 1:20pm):  A thoughtful emailer sent me these questions that I'll try to answer here, rather than in comments.

1 - Has there ever been a winning quid pro quo case where the sex was telephone sex?  I was thinking that Clinton's defenders supported the argument that what he engaged in with Lewinsky was not sex.  Telephone sex would seem to be one step further removed from whatever the definition of sex is.

I don't know if there's precedent on phone sex, but I can't see how it could be distinguished from other verbal harassment.  Sexual harassment laws prohibit more than just offensive physical touching.  But obviously, the type of conduct and its circumstances are going to be highly relevant to damages, and probably also to liability (e.g., if openly displayed in front of co-workers, it's more likely to support a hostile work environment claim because that will tend to show that the employer knew or should have known it was going on).

2 - her (repeatedly) stating that she answered/returned O'reilly's afer-hours calls to her cell phone, etc. because she thought they were work related.  Is this likely an attempt to transform acts that took place outside work into a work-related event?  I've never known a sexual harassment claim that targeted activity that took place solely outside the workplace and outside the work day - does there have to be some tie-in other than the fact that the complainant and respondent both work together?

I'm sure you're correct that Ms. Mackris will argue that the nature of her job had her "on call" outside normal office hours and outside the workplace.  Her position will certainly be that Bill O'Reilly and Fox expected her to be available for work-related phone calls that she accepted, only to learn to her chagrin that they were personally and sexually oriented.  My guess is that she'll be able to prove the former, probably through admissions from the defendants, but the latter will be a hotly contested issue of fact.  If, as she has claimed and will continue to claim, Mr. O'Reilly as her supervisor was trying to leverage his way into phone sex or more through explicit or implicit threats, the fact that his efforts took place outside normal business hours and outside the workplace isn't going to be an effective defense.  The defendants can be expected to dispute this vigorously, however, and they will indeed argue that the after-hours and non-workplace nature of the contacts is more consistent with consensual or invited activity.

3 - you make reference to whether he was set up.  I wondered the same thing when I read the complaint, but why would it matter?  Is there a entrapment defense in civil matters?

It's not entrapment as such, not in the same sense that term is used in criminal law as a defense.  But having sex (or sexual contact or conversations) with a co-worker isn't per se sexual harassment.  (It's just per se risky, especially if one's a supervisor and the other's a subordinate.)  If the quotations in Ms. Mackris' complaint are genuine, then the only way that I see for Mr. O'Reilly (as opposed to Fox and the other defendants, who are differently situated) to win an outright verdict of no liability would be to prove that the contacts and language were consensual and invited (even if not reciprocated), freely and without coercion — in which case it's not actionable.  If the jury concludes that her motive was to set up a bogus lawsuit, they may conclude as a subsidiary finding that she did consent to and invite the conduct.  Technically speaking, this wouldn't be an "affirmative defense," but rather evidence tending to negate a point on which the plaintiff has the burden of persuading the jury by a preponderance of the evidence. 

And even if the jury doesn't conclude that she was setting him up, but faults her for overreacting or harboring unreasonable and exaggerated fears of retaliation, this same evidence that's been offered in an attempt to circumstantially prove her consent may also affect the jury's liability findings on punitive damage questions, and also its setting of appropriate monetary awards for both "actual" damages (which includes "mental anguish") and punitive damages.  It's quite conceivable to me, for example, that a jury might end up holding Mr. O'Reilly liable, but award only very nominal damages — perhaps $1.  That's a classic way that juries communicate their disapproval of both sides' conduct (although it sometimes has an effect, unanticipated by the jury, of making the defendant liable for all of the plaintiff's attorneys' fees).

Hence her repeated allegations in the complaint — which she can be expected to repeat under oath — that she clearly and repeatedly communicated to Mr. O'Reilly that his conduct and language were unwanted.  If it were to turn out, for example, that Mr. O'Reilly said and did everything alleged, but that it was intermixed with her frequently saying, "Oh yeah, baby, I love it when you talk dirty to me, keep going, keep going!" — the jury would almost certainly conclude that the conduct and language wasn't unwanted harassment.  Of course, a scheming vixen (or were the roles reversed, Lothario) might well contrive to ensure that such encouragement didn't appear in any of the audiotapes, even if she gave such encouragement at other times or in other situations.  In short, it's an issue that's ripe for a proverbial swearing match.

This stuff isn't unique to civil law.  There are criminal law parallels in rape cases — just ask Kobe Bryant, or watch or read To Kill a Mockingbird.