In re O’Reilly, Part Two

Fox News has fired Bill O’Reilly. It stated: “After a thorough and careful review of the allegations, the company and Bill O’Reilly have agreed that Bill O’Reilly will not be returning to the Fox News Channel.” The unnamed “allegations” are of improper sexual comments and/or behavior and retaliation against at least one woman who says she rejected a sexual advance.

It seems very likely that O’Reilly made inappropriate remarks over the years. But Fox, which settled five cases of alleged sexual harassment involving O’Reilly, knew about nearly all of the alleged remarks, as well as more serious alleged misconduct, when it extended his massive contract earlier this year.

The main allegation against O’Reilly made since the awarding of that contract is a claim by Wendy Walsh that the talk show host retaliated against her after she declined an invitation to come to his hotel room. I litigated retaliation claims off-and-on for two decades and read hundreds of court decisions involving such claims. If the facts presented in this Washington Post article paint an accurate picture, Walsh’s claim is one of the weakest I have ever seen.

Walsh responded to news of O’Reilly’s ouster with this comment: “Today, we have entered a new era in workplace politics.” The emphasis is mine.

At least one other new allegation against O’Reilly surfaced during the investigation. For the sake of completeness, I might as well discuss it.

Jehmu Greene claims that in late 2007, O’Reilly told her she should show more cleavage when she was in the makeup room. A few years later, discussing a bet the two made in which the prize was dinner, O’Reilly allegedly told her that while she might want to “break his bank” with the restaurant choice, he “was more interested in breaking my back.”

The cleavage comment certainly was inappropriate. The “back” comment, as I interpret it, was too. However, these two comments, made several years apart, could not remotely support a claim of sexual harassment.

There is nothing unjust about firing an employee for a pattern of inappropriate comments, whether or not they rise to the level of sexual harassment or retaliation. If O’Reilly continues to make such comments, his dismissal may well improve the workplace environment at Fox News.

But there is something hypocritical, and maybe even a bit sickening, about firing an employee whose contract has just been extended, notwithstanding knowledge of a pattern of alleged misconduct, where the new allegations against him are as weak as the ones against O’Reilly. I’m no fan of O’Reilly or his show, but I understand why he calls his dismissal under these circumstances “tremendously disheartening.”

I very much doubt that the decision to fire O’Reilly was driven by the facts of his conduct. In all likelihood, it was driven by sponsor reaction. In other words, it was the product of corporate America — spineless and liberal as ever — and left-wing groups that exploit these weaknesses.

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