Bill O'Reilly's "No Spin Zone" House of Blues

October 2004
by Debra Opri - Attorney and Legal Analyst

It's a 'House of Blues' over at Fox News. I believe that the '60 million dollar sexual harassment' [he said/she said] battle against Bill O'Reilly and Fox Corporation will falter and lose steam before it ever sees a jury. It is a safe bet that neither Bill O'Reilly or the CEO of Fox Corp want to be in this kind of situation. It is not a matter of who wins or loses, but how Fox will rebuild a company in which it's star attraction may become a worn out commodity. In sexual harassment litigation, all sides walk away damaged. It is inevitable.

I am a fan of Bill O'Reilly. I have appeared on his show, and I have gone head to head with him on many issues. He's always prepared and he knows his strategy going in. It is no different here. If anyone has mastered the thousand year plus Chinese teachings of Sun Tzu's "The Art of War," it's Bill. However, I also know all about modern day sexual harassment litigation. I have successfully represented James Brown, the Godfather of Soul, who was one of the most omnipresent icons of the sexual harassment forum. Before my representation, James Brown received bad press regarding allegations of his treatment of women. This prior behavior had no influence in a jury returning a verdict favorable to him. This verdict also helped him win the coveted reputation of a 'wronged man' by a 'greedy woman'. And it brought his career to a whole new level. Less than two years afterwards, he was given the coveted Kennedy Center Honor for Lifetime Achievement.

The sexual harassment lawsuit against Mr. O'Reilly may be more surprising to us than the one against James Brown. Obviously, the underlying elements are the same in Bill's sexual harassment case as in all the others. The accuser seeks monetary gain based upon an allegation of sexual misconduct. It is that simple.

Look at the '60 million dollar' quest of this young woman, her eager attorney and the allegations of sexual misconduct. There are allegations of sexual innuendo and commentary, but no offensive touching and no sexual relationship. There are dinners and telephone conversations; no touching, no groping, and certainly no allegations of sexual intercourse. In essence, there is a 60 million dollar value given to a lawsuit replete with a lot of talking and a lot of listening. Nowhere do I hear the magical money words of 'unwanted' or 'non-consensual'. Nowhere do I hear 'forced' or 'against her will'. I mean words to this effect uttered to Bill before she accepted those many dinner invitations and before engaging in what some have termed 'tantalizing' conversation. If these dinners or conversations ever took place is another issue.

Another issue is the credibility of the parties and the attorneys representing those parties. When I hear a plaintiff attorney [and I have represented many plaintiffs as well as defendants in sexual harassment cases] talk of how defense attorneys came to his office with offers of settlement; something that should not have ever been mentioned, I smell the strong odor of foul play.

I don't blame Bill O'Reilly for taking the offensive in filing an extortion lawsuit against the plaintiff and her attorney. I read "The Art of War," too. As a litigator who handles sexual harassment cases for high profile personalities, I know that a jury should first ask in their deliberations: why is this lawsuit here? What was done to motivate this woman to file this action? How bad were these actual comments? Did she invite them? Were they, in fact, ever made as she alleges?

Credibility of the parties will be a crucial factor in this litigation. As credibility goes, it is going to be tough for this woman. It is going to be real bad, in fact, when she tries to explain how she worked for Bill for over a year; how she left and how she returned to work for the same man at the same company - still had time to socialize with him after hours - without ever filing any form of a complaint of grievance with the company.

Many large companies have anonymous telephone 'tip' lines where an employee can make a call and complain about a sexual harassment incident, without any repercussions. There is a record. There are clear, concise, and mandatory procedures and policies for filing sexual harassment claims against the individual and the company. There wasn't any such thing with Ms. Mackris, because she never filed any form of complaint with Fox Corp. She must explain why in the midst of all these now supposedly horrible incidents of sexual harassment at a dinner table and over the telephone after hours, she felt compelled to initiate emails of how happy she was to work for Bill and his show and the Fox Corp!

I wish ms. Mackris luck. She will definitely need it. If the statements she alleges were, in fact, made by Bill O'Reilly, they do not fall within the definition of unlawful conduct if they are not proven to be unwanted or non-consensual. In addition, credibility sinks fast when tied down like an anchor by frivolous settlement demands and there is ample evidence to show contradiction to a young woman's subsequent cries of foul play. If the tapes exist, then they should and would already have been produced. Ms. Mackris may have committed an injustice to the women of our society. Women have fought for over 50 years to get where they are with women's rights and the legal protections afforded them in the hard fought sexual harassment policies of corporate America.

If it is determined that Ms. Mackris sought to use the very system which exists to protect her rights as a woman to gain nothing more than a financial windfall then woe to the rest of us women who seek the protection and respect of those who must enforce it.

Where does this leave Bill O'Reilly; the morally 'above reproach' icon of cable television news? It takes him to the other side of the mountain, like James Brown and Kobe Bryant; a few celebrities dragged through the jury of public opinion by virtue of being entrenched in a legal system regarding claims of sexual misconduct. Bill must now climb to the top of the mountain and proclaim his innocence and hope the mud washes off his crisp white trousers.

What do I think? I believe Bill O'Reilly is not the man this woman seeks to portray to us and I hope the truth surfaces so we all learn how to best use the system to protect all of us. As for Bill, he does not need us to tell him how to fight for his good name. I think Bill will do just fine, no matter what happens. He has the luck of the Irish. When the smoke clears, and the courtroom is empty, and Bill leaves the halls of justice to return to the streets of New York and America, he will still be in the "No Spin Zone," and we will sit in our living rooms and watch him do what he does best.

 

From the courtroom to your living room, this has been another edition of THE OPRI OPINION.