It’s a puzzling contradiction: Fox News host Bill O’Reilly paid an eye-popping $32 million to a woman who accused him of sexual harassment and something mysteriously described as a “nonconsensual sexual relationship.” Yet he says he did nothing wrong, and settled only to shield his children from his bad publicity.
Why would the fallen king of the “No Spin Zone” pay so much for something he didn’t do? The phrase “nonconsensual sexual relationship” may be key, said attorneys who spoke with TheWrap.
Lis Wiehl, the woman who received the settlement, was a Harvard law school graduate and attorney who worked as a legal analyst on O’Reilly’s show from 2001 to 2016. The New York Times said her accusations against him included “repeated harassment, a nonconsensual sexual relationship and the sending of gay pornography and other sexually explicit material to her.”
O’Reilly paid the $32 million out of his own pocket to settle the claim in January, said the Times, which broke the news of the payment over the weekend.
“One possible reason [for O’Reilly to settle] is there was either an assault or rape,” said New Jersey employment lawyer Nancy Ericka Smith, who represented Gretchen Carlson in the sexual harassment lawsuit that toppled O’Reilly’s former boss, Roger Ailes, and won her client a $20 million settlement.
“‘Nonconsensual’ sounds more like the language that is used in the criminal statutes. … If you don’t consent, it’s a forced sex act,” Smith said. “That is extreme and can cause unbelievable harm and certainly would cause him embarrassment. That’s one possible reason.”
Debra Katz, a long-time employment lawyer in Washington, D.C., said there’s another possible explanation. She interpreted Wiehl’s allegation of “nonconsensual sex” to refer to a type of sexual harassment known as an “unwelcome” sexual relationship, not rape. “The woman may go along with it, because they are coerced to do it, so it’s not consensual. It’s not rape, it’s a coerced sexual relationship.”
She called the $32 million payment “jaw-dropping.” Smith said it might be the highest out-of-court sexual harassment settlement for an individual accuser ever.
Supervisors who have sex with employees often say it was consensual, if the employees agreed to the sex. But sex harassment law allows victims to argue they were coerced and the sex is “unwanted,” because they feared repercussions for refusing, said CUNY Law School professor and employment law expert Rick Rossein.
“The law recognizes that, sooner or later, a person may acquiesce in demands or requests for sex, consenting due to fear of economic or career reprisal, despite the fact that the sexual advances were unwelcome,” Yale Law School employment law professor Viki Schultz told TheWrap. Unwelcome sex is still sexual harassment in the workplace, she said.
We may never know what happened between O’Reilly and Wiehl, and that is by design.
The ousted “O’Reilly Factor” host said he did nothing wrong to her, and his spokesman said that Wiehl had signed a sworn affidavit “renouncing all allegations against” O’Reilly. The settlement required Wiehl to agree not to sue Mr. O’Reilly, Fox News or 21st Century Fox, and to agree to the destruction of all text messages, photos, and other communications between the pair.
Smith and Katz said O’Reilly may have paid such a high amount to make sure the evidence would be destroyed.
“I don’t blame Ms. Wiehl at all,” Smith said, but she added that destroying the evidence hurts “other women [who] could have subpoenaed that evidence in other cases. Because evidence of the same person harassing other victims is evidence of sexual harassment.”
Katz called the destruction-of-evidence requirement “just another technique to conceal recidivist, unlawful, predatory behavior.”
Six women are known to have settled sex harassment claims against O’Reilly from 2002 to 2017: Fox News junior producer Rachel Witlieb Bernstein, “The O’Reilly Factor” producer Andrea Mackris, Fox Business Network host Rebecca Gomez Diamond, Fox News anchor Laurie Dhue, Fox News on-air personality Juliet Huddy, and Wiehl. Mackris was paid $9 million, but the other amounts are unknown, according to the New York Times.
Professor Schultz called Wiehl’s $32 million settlement “extremely high” compared to the average employment discrimination settlement of $54,000 found in a 2007 study of federal magistrate courts in Chicago. Mitsubishi Corp.’s payment of $34 million to settle the federal government’s 1996 sexual harassment lawsuit against the company might be the largest sexual harassment settlement, but that case was brought on behalf of more than 350 women, not just one woman, Schultz said.