Bill O'Reilly's $32 Million Settlement

Bill O'Reilly has just been dumped by his talent agency, following the disclosure by the New York Times that he settled a sexual harassment claim by Fox Legal analyst Lis Wiehl for $32 million.

Here's the affidavit she signed.

"I would no longer make the allegations contained in the draft complaint," she wrote.

It's clear from that statement that her lawyers sent O'Reilly a draft of the complaint she intended to file in court. Was she also going to sue Fox? I suspect the answer is yes, because the affidavit also refers to her settling her claims against Fox. I wonder what Fox agreed to pay her.

Lis is a long time acquaintance of mine and I have a great deal of respect for her -- professionally, personally and ethically. We used to spend time together in New York. She was already O'Reilly's radio co-host, and while my impression was she found it difficult to work with him and didn't look forward to it, I don't recall ever discussing any specifics with her. So I have no first-hand information. [More...]

But, I have some thoughts, based on what I know of her personality and personal beliefs and the high standards she set for herself.

For O'Reilly to settle for $32 million, which is the largest Fox-related settlement to date, I suspect the abuse she allegedly suffered took place over many years.

I was a little perplexed at the term "non-consensual sexual relationship" that the New York Times reported she originally alleged. I think most people interpret that as having sex, but in legal parlance, it doesn't necessarily mean that.

According to EEOC guidelines,

Title VII does not proscribe all conduct of a sexual nature in the workplace. Thus it is crucial to clearly define sexual harassment: only unwelcome sexual conduct that is a term or condition of employment constitutes a violation. 29 C.F.R. § 1604.11(a)..... The Guidelines provide that “unwelcome” sexual conduct constitutes sexual harassment when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,” 29 C.F.R § 1604.11 (a) (1).

b) Conduct Must Be "Unwelcome" - Citing the EEOC's Guidelines, the Court said the gravamen of a sexual harassment claim is that the alleged sexual advances were "unwelcome." 106 S. Ct. at 2406. Therefore, "the fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. . . . . The correct inquiry is whether [the victim] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary." Id.

...A. Determining Whether Sexual Conduct Is Unwelcome

Sexual harassment is "unwelcome . . . verbal or physical conduct of a sexual nature . . . ." 29 C.F.R. § 1604.11(a). Because sexual attraction may often play a role in the day-to-day social exchange between employees, "the distinction between invited, uninvited-but-welcome, offensive- but-tolerated, and flatly rejected" sexual advances may well be difficult to discern. Barnes v. Costle, 561 F.2d 983, 999, 14 EPD ¶ 7755 (D.C. Cir. 1977) (MacKinnon J., concurring). But this distinction is essential because sexual conduct becomes unlawful only when it is unwelcome. The Eleventh Circuit provided a general definition of "unwelcome conduct" in Henson v. City of Dundee, 682 F.2d at 903: the challenged conduct must be unwelcome "in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive."

When confronted with conflicting evidence as to welcomeness, the Commission looks "at the record as a whole and at the totality of circumstances . . . ." 29 C.F.R. § 1604.11(b), evaluating each situation on a case-by-case basis. When there is some indication of welcomeness or when the credibility of the parties is at issue, the charging party's claim will be considerably strengthened if she made a contemporaneous complaint or protest.7 ... Thus, in investigating sexual harassment charges, it is important to develop detailed evidence of the circumstances and nature of any such complaints or protests, whether to the alleged harasser, higher management, co-workers or others.

So could a non-consensual sexual relationship could include years of repeatedly asking for sex despite being turned down, years of unwelcome massages or other touching of body parts, years of phone calls with lewd comments and sexual suggestions or one sided phone sex? How about an attempt at sexual assault? I don't know the answer since it's not my area of law, but I suspect those types of things, rather than actually having sex, are the root of the allegations. In a million years, I can't imagine Lis Wiehl agreeing to have sex with Bill O'Reilly.

I read somewhere that the $32 million is a payout over time, not a lump sum. If O'Reilly can't get a job from here on out, will he actually pay up? The agreement reportedly provides both parties are to destroy the evidence. If he stops paying, or is in default of the agreement, how would she prove the charges in court if her cororborating evidence has been destroyed? If he defaults, does the agreement provide the statute of limitations stops running? Also, could he discharge the debt in bankruptcy?

One last thing: Could the New York DA open a criminal investigation? If he did, I think the non-disclosure clause is pretty meaningless and she could be forced to testify. And at least as to email evidence, while the parties and lawyers might have erased it, if they still have the same computers, law enforcement could probably get the computers with a search warrant and recover the lost data.

The media interest in this seems to be that Fox renewed O'Reilly's contract after learning of Lis's claim. I think a fair reading of the very concise affidavit is that Lis' draft complaint included Fox as well as O'Reilly. Otherwise, why put in the affidavit that Lis also settled her claims with Fox?

Bill O'Reilly wants to blame everyone from G-d to the media and his accusers for his current state of affairs. The problem is the allegations against him are not new and are multiple and similar in nature . He just doesn't seem like a nice guy warranting our sympathy. His worst decision may be taking over as his own chief publicist.

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  • Display: Sort:
    For $32,000,000 he buys, well, nothing. (none / 0) (#1)
    by sarcastic unnamed one on Tue Oct 24, 2017 at 06:01:58 PM EST
    Wadda maroon.

    He is (none / 0) (#2)
    by CaptHowdy on Tue Oct 24, 2017 at 06:07:13 PM EST
    Angry at God.  If he still had a tv show he could do a hit piece on God.

    Ben reading Lis Wiehl's books for (none / 0) (#3)
    by Anne on Tue Oct 24, 2017 at 07:13:35 PM EST
    years - very entertaining.

    I think the days of men being able to blame women for their own bad behavior may be coming to an end, and for some men, it's going to come with a steep price tag.

    Of course, I think there's a significant contingent that will resist having to behave themselves, who truly want to go back to the "good ol'" days when men took what they wanted and women let them.  One gets the feeling that O'Reilly is losing his sh!t because, dammit, he feels entitled to do as he pleases, no matter how obnoxious, unwelcome or creepy it is.

    Starting to sound like war, isn't it?

    Dare we hope that all these revelations ... (5.00 / 1) (#5)
    by Donald from Hawaii on Tue Oct 24, 2017 at 08:27:47 PM EST
    ... are finally prompting a long-overdue national discussion about the degradations women have had to endure from men? I don't exempt my own past behavior from that discussion. I've freely admitted that I'm my younger days, I tended to not treat girlfriends very well.

    I never abused them sexually or physically, mind you, but in retrospect I certainly didn't respect them the way I should have. Rather, I acted as though I was entitled to their affections without any reciprocation on my part. I now find that sort of odd, since I was raised in a family of strong women whom I otherwise crossed or disrespected at my own peril.

    But when I wasn't around the women in my family, I was around other guys and I remember the derogatory way we often talked about girls and women. The straight male community has long tended to be a self-reinforcing one. If any of us acceded to our girlfriend's wishes or demands, we were derided as "p*ssy-whipped" or worse.

    After all, no self-respecting guy would allow his girl to wrap him around her finger like that, or would want his friends to know about it. And let me tell you, we could be vicious and cruel in our ridicule of one another. Looking back, how absurd we straight guys all were -- and still are, for that matter, given the evidence of these recent revelations.

    Anyway, we as a nation and society really need to have this discussion. Women have been putting up with this crap for far too long because as men, we have long held an inordinate power over their home, social and professional lives.

    The best way to fix this, from my perspective, is to address the issue of gender equality in our laws once and for all, and to ensure that more women are placed in positions of public and corporate authority. Personally, I'd love to see the Equal Rights Amendment get resurrected, adopted and ratified as a result. That wouldn't be the end of it, of course, but it would sure be a pretty place to good start.



    thank you (none / 0) (#15)
    by linea on Thu Oct 26, 2017 at 11:30:17 PM EST
    we were derided as "p*ssy-whipped" or worse

    and all the insults that boys use with other boys are to say they `throw like a girl' or a frightened `like a girl' and the gym coach shouts to the boys on the middle school football team, `let's try that again ladies' as an insult. it's insidious.


    SO glad to hear this (none / 0) (#16)
    by CaptHowdy on Fri Oct 27, 2017 at 10:14:13 AM EST
    i agree.  i have never liked my indian name.

    which oddly enough is Throws Like A Girl.


    comment deleted (none / 0) (#4)
    by Jeralyn on Tue Oct 24, 2017 at 08:04:44 PM EST
    speculating about another Fox news anchor with absolutely no basis. Take that stuff elsewhere.

    doesn't add up (none / 0) (#6)
    by thomas rogan on Wed Oct 25, 2017 at 06:26:06 PM EST
    "So could a non-consensual sexual relationship could include years of repeatedly asking for sex despite being turned down, years of unwelcome massages or other touching of body parts, years of phone calls with lewd comments and sexual suggestions or one sided phone sex?"

    Sort of hard to make these into a crime that the DA would investigate and there might be statute issues even if there were "attempted sexual assault".  Of course, all of this is pure speculation.
    I can see a poor working class woman struggling to feed her children putting up with "years" of harassment.  It happens all the time.  
    A distinguished upper middle class legal analyst would most likely be able to afford to quit the job and file a sexual harassment suit after a week or a month of such harassment, and still have plenty of money to take care of herself and her family, even if the next job paid much less than being O'Reilly's cohost and the lawsuit were lost.

    Of course it does (5.00 / 3) (#7)
    by Yman on Wed Oct 25, 2017 at 07:32:10 PM EST
    Try carrying the six zeros that are after the "32".

    But I love how people pretend they know what a victim of sexual harassment should have done, or how they attack the victim's credibility ... especially men who have never been in the victim's position.


    Good points, thomas (none / 0) (#10)
    by NYShooter on Wed Oct 25, 2017 at 10:12:00 PM EST
    But, the comparison doesn't have to be as dramatic as:

    poor working class
    distinguished upper middle class........... The law applies equally to both.

    Whew, let me tell you, this area of labor, and/or, criminal, law is just about as difficult, and, complicated, as one can imagine........and, for both parties: Plaintiffs and Defendants.

    During my stint at Corporate Management I was, necessarily,  involved in quite a few of these cases. I hated every single one. Since the topic, "sexual harassment," is so huge, I'm limiting my comments here to those cases where the alleged incident(s) occurred behind closed doors, so to speak. In other words, where the only witnesses are/were the two participants. If ever there was an appropriate moment to cry out, "Oy Vey!" this is it.

    Anyway, let's see how much interest there is in continuing this discussion.


    NBC reporting (none / 0) (#8)
    by ragebot on Wed Oct 25, 2017 at 07:52:36 PM EST
    Good way (none / 0) (#9)
    by Ga6thDem on Wed Oct 25, 2017 at 09:05:30 PM EST
    for Sinclair to become a laughing stock or look like desperate fools. Maybe they don't care since they already have a Nazi as talent.

    Are you serious (5.00 / 1) (#11)
    by CaptHowdy on Thu Oct 26, 2017 at 10:16:18 AM EST
    Sinclair is building it's name on Nazi talent.  This is predictable.  

    If Ailes was not dead he would be working there.

    And for those who don't know this is not cable or talk radio.  This is NETWORK.  It will go into 70% of US homes.

    Seriously google the threat of Sinclair


    Would not be surprised (none / 0) (#12)
    by CaptHowdy on Thu Oct 26, 2017 at 10:19:52 AM EST
    If Halperin lands there.  You know, for "balance"

    Yeah (none / 0) (#13)
    by Ga6thDem on Thu Oct 26, 2017 at 11:49:56 AM EST
    I know about Sinclair. They are awful. Maybe they will replace talk radio which seems to be losing steam and probably why they are going into TV. Some of their ownership is definitely third rate but a lot of it is prime stations too. And now with the changes expect them to own even more stations.

    $32,000,00 settlement (none / 0) (#14)
    by oculus on Thu Oct 26, 2017 at 08:26:57 PM EST
    in a civil lawsuit against a single individual where there was no wrongful death or inability to care for self or others more likely than not caused by defendant--this is an extraordinarily high settlement.

    Maybe he didn't want (none / 0) (#17)
    by NYShooter on Fri Oct 27, 2017 at 04:10:49 PM EST
    to go through "discovery?"

    "Who knows what evil lurks in the hearts of men?... The Shadow knows!" or, worse, "Plaintiff's council" will find out.

    Going through discovery is like, going through an autopsy....while you're still alive.