The Sexual Harassment Case Against Fox News's Bill O'Reilly:
Why Winning May Be O'Reilly's Costliest Option

The plaintiff is Andrea Mackris, a 33-year-old journalist who, beginning in 2000, worked as a booker, and then a producer, for "The O'Reilly Factor." On October 13, Mackris's attorneys filed suit against O'Reilly in New York County Supreme Court. Then, six days later, they amended the complaint to include additional claims against O'Reilly and his employers.

Interestingly, it was O'Reilly, however, who beat Mackris to the courthouse. Hours before she filed her original complaint, O'Reilly's attorney, Ronald M. Green, filed one on O'Reilly's behalf. That complaint accused Mackris and her lawyer of, among other things, "attempted extortion." It alleged that in demanding $60 million, Mackris wasn't asking for a settlement to a possible claim; she was asking for "hush money."

In this column, I will consider whether O'Reilly may have a winning hand here - and discuss why, nevertheless, his best strategy may require him to fold. If I were his attorney, I would reluctantly advise him to settle the case.

Mackris's Claim: O'Reilly Told Her Inappropriate Sexual Stories

Mackris says that, beginning in 2002, her boss regularly regaled her with sordid sexual tales -- at times over dinner, but most often over the phone. Her complaint reveals it as the kind of dirty talk for which some lonely hearts might pay $3.99 per minute.

Mackris's complaint details O'Reilly's alleged soliloquies - complete with "ums" and pauses. It seems likely, for this reason, that Mackris must have somehow recorded O'Reilly's ramblings. And these recordings, if they occurred in New York, may have been perfectly legal: New York is a "one party consent" state when it comes to recording -- which means that although wiretaps remain illegal, one party to a conversation can legally tape the other without his knowledge.

These facts suggest the strong probability that O'Reilly really did make the comments Mackris ascribes to him. If so, O'Reilly's public image will doubtless be harmed: The notorious conservative will seem hypocritical, for he is the married father of two small children. If he used his producer as a soundboard for his own sexual fantasies, that not only wasn't part of her job - it was decidedly contrary to his image and beliefs. But was it, under the law, sexual harassment?

Can Mackris Prove Actionable Sexual Harassment Under New York Law?

Mackris sued in New York state court, and raising state law claims. So what matters here is New York law on sexual harassment. And under that law, not all things sexual in nature rise to the level of "harassment."

Here in New York, there are two varieties of sexual harassment - both of which Mackris alleges in her complaint. The first is "quid pro quo harassment." It occurs when an employee is subject to unwanted sexual conduct which forms the basis for future decisions regarding his or her employment.

The second, commonly called "hostile work environment" involves exposure to a pattern unwanted sexual advances, physical contact, sexual remarks, sexual photographs or other types of intimidating, hostile, or offensive work environments.

What these two claims have in common is that the plaintiff must prove the conduct was unwanted - that is, unwelcome. It is here where Mackris's proof may fall short. Despite what seems to be "smoking gun evidence" -- the recordings -- I predict Mackris will be unable to prove her case.

To begin, it's important to note that Mackris left Fox in March of this year to take a higher-paying position at a rival network, but then requested to come back to work for Bill O'Reilly - and did so in July.

Indeed, after she got her old job back, she emailed a friend that "...things (at Fox) are: wonderful, amazing, fun, creative, invigorating, secure, well-managed, challenging, interesting, fun and surrounded by really good, fun people. I'm home and I'll never leave again."

This just doesn't sound like a woman who has been subjected to unwanted sexual harassment. And this isn't the only evidence that will severely undermine Mackris's case.

Mackris's Achilles Heel: She Must Prove O'Reilly's Remarks Were Unwanted

The key evidence in proving either quid pro quo sex harassment, or a hostile working environment, turns on two words: The complainant must prove the conduct complained of was either unwelcome or unwanted.

Can Mackris prove that O'Reilly's remarks were unwelcome or unwanted? Consider the evidence.

She says that these remarks were made beginning two years ago - in 2002. But she never complained in writing to higher-ups - despite the fact that her employer, News Corp., the parent company of Fox News, has put specific complaint procedures in place. Apparently, the first anybody at Fox heard of this was via a cryptic letter she recently sent to the network's top brass - only two weeks before she sued.

But even if Mackris didn't complain to higher-ups, did she ever complain to O'Reilly? Mackris's complaint does allege that she verbally communicated her discomfort during a handful of discussions with O'Reilly over dinner. But these stray remarks may not suffice to prove Mackris's case - especially in light of what appears to be her damning conduct in recording O'Reilly's calls.

Making A Recording Suggests Remarks Are Encouraged, Not Unwanted

Mackris had the power put a stop to O'Reilly's alleged phone harassment as easily as she could have flipped a light switch, or pressed an elevator button, or rang a doorbell. With one finger, she could have refused to be the victim. She could have hung up the phone.

Instead, she hit the "record" button. And once she did that, on some level, Mackris encouraged the very behavior she claims to have shunned. What might have been harassment, suddenly became a meal ticket - by that time, Mackris must have anticipated a big-money suit against O'Reilly.

And remember, the tapes were recorded legally - so she might also have anticipated selling the tapes to the highest bidder, whether or not that was O'Reilly. Interestingly, a columnist for a rival network - MSNBC -- has publicly "offered" Mackris $100,000 for the tapes in his column. His offer may or may not be serious, but others doubtless are, or will be.

O'Reilly May Have a Legitimate Extortion Complaint

Do Mackris's recordings provide evidence she was, indeed, committing extortion? Again, let's look to New York law.

Penal Law § 155.05 says, in part, that:

"A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule."

Mackris's and/or her lawyer's behavior seem to fit. She apparently sought money - which counts as "property" -- from O'Reilly before she filed her complaint. And it seems likely that she - or her lawyer, acting as her agent - instilled the fear in O'Reilly that if he didn't pay up, she would "expose a secret" that would subject him to "hatred, contempt, or ridicule."

Again, her tapes (assuming they do exist) were very probably legally recorded - meaning she could legally sell them. If she or her lawyer told O'Reilly about the tapes, wouldn't that have instilled in him a fear that she would "expose" his "secret" by selling them? And wouldn't that secret - that a conservative family man talked dirty to his young producer on numerous occasions - have indeed exposed O'Reilly to "hatred, contempt, and ridicule"?

Still, even if this conduct does constitute extortion, as it seems it might, it may nevertheless be in O'Reilly's best interest to settle.

Why O'Reilly Should Settle, Despite the Strength of His Case

Here's the bottom line: If the tapes get out, O'Reilly will be terribly hurt. And since the tapes were, apparently, legally recorded, O'Reilly has only a few options. One is that he could, in effect, buy the tapes by settling the suit with a condition that the tapes be turned over or destroyed.

Another is that O'Reilly could try to convince a New York prosecutor to seize the tapes, as evidence of criminal extortion. But every day that prosecutor delays in his decision, is another day when Mackris could choose to sell the tapes to an outside bidder - keeping a copy for herself, of course.

If all this sounds like extortion, that's because it probably is. But from O'Reilly's perspective, the far safer option is probably not to go after Mackris and her lawyer for extortion, but simply to get those tapes - by settling the suit. It's one thing to see the words in a complaint, and another to hear them over television or radio. If Air America were to get the tapes, for instance, O'Reilly will be cooked. And if the tapes are played once, they will be able to be re-recorded and replayed forever.

My guess? O'Reilly will do something to which he's not accustomed: He'll settle. Maybe not for the full sixty million dollars Mackris wants, but perhaps for six million. This is one case O'Reilly cannot afford to win.