Personal Injury, Probate, Employment, & Complex Litigation


Fox News's Sexual Harassment Problem

Over the past year, prominent mainstays of Fox News, Roger Ailes and Bill O’Reilly, have been fired by the company due to allegations of sexual harassment directed at both of them.

From a simply moral perspective, this appears to be the correct decision. However, most companies do not make decisions on a simple moral basis, instead they make their decisions primarily on economic concerns (as the Supreme Court has mandated all publicly traded corporations do, or else be liable to their shareholders).

So, why then would Fox News choose to part with the person that has guided their network to unmatched ratings success as well as the person that is the face of their network? The answer is likely found in a legal analysis of sexual harassment.

Sexual harassment can be found through two different methods: quid pro quo and hostile environment. Quid pro quo sexual harassment deals with unwanted sexual advances that are attempted to be exchanged for employment benefits (whether it means being promoted, getting a raise, not being fired, etc.). While there were quid pro quo allegations levied against Ailes, it does not appear to be the reason they fired him and O’Reilly, instead, it is likely due to a creation of a hostile environment.

Generally speaking, employers are not held liable for their employees actions that are beyond the scope of their employment, and which they didn’t know, or shouldn’t have known about. This analysis is true in a sexual harassment-hostile environment claim when no adverse employment action was taken against the victim (although, the employer can be liable even if they didn’t know or shouldn’t have known if adverse employment action is taken). However, if the employer knew, or should have known of the hostile environment, they can, and likely will, be held liable for their employees actions unless they took prompt and appropriate corrective action (Carter v. California Dept. of Veterans Affairs (2006) 38 C4th 914.).

Before we can discuss whether Fox News knew or should have known of the hostile environment, we first have to establish what a hostile environment is.

The U.S. Supreme Court stated in the case Burlington Industries, Inc. v. Ellerth (1998) 524 US 742 that a hostile environment is created when, “bothersome attentions or sexual remarks that are sufficiently severe or pervasive.” Essentially, if  unwelcome sexual advances, conduct, or comments were so severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, then there is grounds for sexual harassment, even if no adverse employment action is taken. Additionally, the person that sues on the basis of sexual harassment does not need to be the intended recipient of offensive conduct (EEOC v. PVNF, LLC (2007) 487 F3d 790.).

Applying this law to the Fox News case, with the facts as we know them, it does appear that there is a hostile environment. At the very least, there is Roger Ailes, who was, until very recently, in charge of Fox News, known to make quid pro quo sexual advances and make lewd comments to female employees. The reports are that he was not that secretive about it, and their, at the time, prominent female anchor, Megyn Kelly confirmed the pervasiveness of the sexual harassment on air. Additionally, when the head of a company is proudly making inappropriate sexual comments, it creates a permission structure to allow everyone else in the company make similar comments and advances. Keeping in mind that even women who merely witnessed the pervasive sexual harassment could potentially sue Fox News if Fox did not take prompt and appropriate action (something they likely already failed to do, but could correct for future harassment claims) Fox likely had no choice, from a simple economic standpoint, but to fire Ailes.

The next instance is of course the more recent one, Bill O’Reilly. His case is slightly different as it wasn’t a whole slew of women coming forward with complaints never heard of before, but instead it was a new report of older claims that had already been resolved via settlement. Most people would probably think that the settlements would negate any potential liability Fox News would have. Most people would be wrong. You see, even if Fox News didn’t know about the complaints against O’Reilly before, there is no way to deny that they knew about them now. And the reports, again, demonstrate the pervasiveness of his sexual harassment that created a hostile environment, something else that Megyn Kelly publicly confirmed. So, while the women that came to a settlement with O’Reilly couldn’t then sue Fox News, if Fox failed to act appropriately, they could, and likely would, be held liable for any future sexual harassment allegations. As a result, Fox News again likely had no choice, from a simple economic standpoint, but to fire O’Reilly.

Additionally, the harassing environment appears to be so pervasive and come from such prominent members of their company, and because liability is not limited to those that the harassment was directed, Fox News was/is looking down the barrel of a possible class action lawsuit against them by their female employees.

As a result, in order to attempt to stem the tide regarding their clearly pervasive sexual harassment environment, Fox News had no choice but to come down hard on Roger Ailes, but also Bill O’Reilly, whose conduct was already resolved via settlements, but Fox News’ knowledge of the conduct makes it potentially liable for any future harassment. It is likely that if another anchor or executive is accused of sexual harassment, Fox News will also fire them, as at this point, from an economic/legal perspective, they seemingly have no choice but to clear house until the sexual harassment culture is gone.