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An Open Letter to Bill O’Reilly

December 3, 2004

D ear Bill:  You certainly had an eventful October.

    First, you received a letter suggesting a meeting to "resolve the complaints of a young woman employee who had been the victim of constant and relentless harassment by a prominent on-air personality." Then you sued female colleague Andrea Mackris and her attorneys for attempted extortion, tortious interference with prospective business relations and intentional infliction of emotional distress.

    Mackris filed her own lawsuit against you and your boss, Fox News Channel, for sexual harassment, a sexually charged hostile work environment and retaliation. You took your case to the American public on your television show, The O’Reilly Factor, calling her lawsuit "the single most evil thing I have ever experienced."

    Mackris’ father reportedly challenged you to a duel. And on October 28, the two lawsuits were settled out of court for an undisclosed amount. "Multimillion-dollar settlement" was the phrase most frequently reported by the media.

    Bill, I have to admit I’ve never seen your television show. Until recently, I thought the "No Spin Zone" was a show about bicycling. But I’m told that The O’Reilly Factor makes no bones about "telling it like it is."

    I’m in a similar position. "Telling it like it is" to a defendant accused of sexual harassment in the workplace is something I have made a career of. While the facts of the many sexual harassment lawsuits I’ve handled since 1980 differ and probably vary somewhat from yours, there are some common truths contained in all of them. Here is the shortlist of truths to be remembered. Everyone can learn from these.

    Truth No. 1: Somebody’s gonna pay. You probably know this one already. The biggest cost is emotional energy. Emotions are at a fever pitch on both sides of the lawsuit’s case caption. Everyone associated with the plaintiff and defendant gets emotionally involved. If time is money, then there is a lot of money expended on participating in investigations, testifying at depositions and rumormongering around the water cooler or its e-mail equivalent.

    Most large corporations will tell you that defending a "routine" sexual harassment lawsuit costs anywhere from $55,000 to $150,000 or more. My guess is that yours fell in the "or more" category. If you add in the emotional-energy quotient and loss of productive work, the expense can quickly become dizzying.

    Truth No. 2: Employment lawyers will always stay busy. As long as human nature remains the same, lawyers will have plenty of work. We’ve never met and I don’t know your off-screen personality, but let’s take another Bill--former President Clinton--as an example. The characteristics that took him to the presidency--the drive for power, a strong ego, a sense of control, the notion that criticism and commentary would bounce off him--are the same characteristics that are found in virtually every Type A personality and in every defendant in a sexual harassment lawsuit.

    Many experts will tell you that sexual harassment isn’t about sex at all, but more about power, ego and control, fueled by a feeling of being "bulletproof." A leader’s strong natural characteristics can be channeled to achieve great deeds. Misguided and misdirected, those same characteristics cause a lot of problems.

    Truth No. 3: Perception often becomes reality. The U.S. Supreme Court says that to prove a hostile-environment sexual harassment claim, an employee must show several things, including that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.

    Whether the conduct is sufficiently severe or pervasive to constitute sexual harassment depends almost completely on individual perception. In a lawsuit, it is the perception of the judge and jury.

    The judge and jury will look at two kinds of evidence: direct and circumstantial. Direct evidence is easy. You said it, she taped it, the jury hears it, you lose. But without such direct evidence, the jurors are free to impose their own perceptions on the evidence.

    Here’s a story from my trial files. A couple of years ago, I defended a lawsuit filed by 14 African-American plaintiffs who claimed they were subjected to a racially hostile environment at work. Millions of dollars and the defendant’s reputation were at stake. At trial, plaintiffs introduced a poster called "Monkey Rules" that had been prominently displayed in the workplace.

    At first glance, it was shocking. In his examination of my client, the plaintiffs’ attorney played up years of racist diatribes and name-calling to associate those rules with discrimination against the plaintiffs. One of the rules was "Monkeys should be fed or shot." Another monkey rule suggested that monkeys should be fed by appointment only.

    The plaintiffs perceived those "monkey rules" to be racially discriminatory. The reality was that the poster was a reprint of a Harvard Business Review article, "Management Time: Who’s Got the Monkey?" by William Oncken Jr. and Donald Wass, with commentary by Stephen Covey.

    The Monkey Rules were really management skills on how to deal with employees who get rid of business problems by delivering them to you for a solution--"putting the monkey on your back." After the Harvard Business Review article was introduced as an exhibit, the Monkey Rules poster disappeared from the courtroom. (P.S. We won that case.)

    That same tug-of-war between perception and reality exists in almost every hostile-environment sexual harassment case. Touching, sexual innuendo, private lunches or meetings, late nights at the office and frequent cell phone calls at odd hours are all evidence from which different perceptions could be derived. And then the perceptions can become reality. Try as it might to impose a "reasonable person standard," the Supreme Court cannot dictate an individual’s perception. People in positions like yours, Bill, can do themselves a favor by avoiding any sexual harassment and avoiding any conduct that could be perceived as sexual harassment.

    Truth No. 4: You’re not playing football. The best defense is not a good offense. Going on the offensive will draw a retaliation charge every time. In the sexual harassment context, the best defense is not to be offensive. Enough said.

    My great-uncle was an evangelical minister. He often told the story about the elderly Presbyterian woman who believed in predestination. She fell down the stairs one day. After she picked herself up, she looked back up the stairs and remarked, "I’m glad that’s over." Regardless of your religious beliefs, I suspect you are glad this is over. And on behalf of everyone who deals with similar situations every day, thank you for reminding us of the truths to be learned from these unhappy situations.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management, December 2004, pp. 20-21 -- Subscribe Now!