Fox contributor not an employee, can’t pursue sexual harassment claims
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Friday, April 27, 2018

Fox contributor not an employee, can’t pursue sexual harassment claims

By Brandi O. Brown, J.D.

A regular contributor for a Fox news show who alleged that she was raped and coerced into a long-term sexual relationship with a Fox anchor, and then blacklisted and defamed after she ended it, will not be able to proceed with her sexual harassment claims, a federal district court in New York ruled. She was not paid for her work and her allegations did not support any other scenario of employment. However, she could pursue failure-to-hire claims under federal and local law, as well as retaliation claims based on being blacklisted and denied further appearances. Her defamation and New York City Gender-Motivated Violence Act claims would not proceed either. The defendants’ motion to dismiss was granted in part (Hughes v. Twenty-First Century Fox, Inc., January 4, 2018, Pauley, W.).

Rape followed by quid pro quo relationship. In 2013 the plaintiff, a conservative political strategist, met a Fox Business Network anchor with whom she appeared on several Fox programs. They corresponded with one another and, according to the plaintiff, the anchor indicated an interest in helping her advance her career. However, she alleged that the price of that help became clear in July 2013 when he sexually assaulted and raped her. Thereafter, she contended, he invited her to appear on Fox programs more frequently and they maintained a sexual relationship. According to the plaintiff, the relationship was quid pro quo in nature—the anchor made it clear that he easily could take away the opportunities he was sending her way. Her attempts to end the relationship were met with violence and anger.

As the relationship continued, her work with Fox continued as well. She alleged that while she was unpaid, the network and the anchor dictated the terms of her appearance, as well as her schedule. She was expected to be on-call, essentially, and any failure to respond would lead to her losing future appearances. She was also expected to wear her hair and her clothing in a certain way to have the “Fox look” and she was also given specific talking points, questions, and responses to use. During this time the plaintiff attempted to secure a full-time, paid contributor position. She was told multiple times that she would be considered for a full-time contract and those promises appeared to be nearing fruition in early 2015.

Breakup and blacklisting. However, in mid-2015 the plaintiff finally broke things off with the anchor for good. Thereafter, she alleged, her appearances dwindled precipitously, with only five appearances in the following months, leading to a final appearance in early 2016. Previously she had made nearly that many appearances in one week alone. Moreover, she alleged that Fox, which had been well-aware of her relationship with the anchor, put the word out to other networks that she was “not bookable” and she also was unable to secure work elsewhere.

Enquiring minds wanted to know. In 2017, the plaintiff’s manager contacted Fox’s outside counsel to report the 2013 rape. The network responded aggressively and provided a prepared statement made by the anchor to the National Enquirer, which had plans to run a story about the affair. Although the plaintiff was not named by Fox, it was clear to whom the story referred. A few days after that article was published, the plaintiff alleges that Fox also leaked cherry-picked emails sent by the plaintiff to the anchor, which cast doubt on her credibility and subjected her to public scorn because of their salacious content. Subsequently she sued the network, as well as the anchor and several other individuals, claiming employment and gender discrimination, defamation, and gender-motivated violence. The defendants filed a motion to dismiss.

Not an employee. One major problem plagued the plaintiff’s gender discrimination claims under Title VII, NYSHRL, and NYCHRL, the court explained, and that is that she was not the network’s employee. To prove employment status, an individual first must establish remuneration, then over a dozen other factors will be considered. The plaintiff could not jump that first hurdle. Not only did she not receive a salary, but she also did not receive benefits such as health insurance, sick pay, or vacation pay. The only benefits she received were “incidental.” The network covered her travel costs and the cost of doing her hair and makeup for appearances. Nor was the promise of compensation later, as part of a paid contract, sufficient to constitute a financial benefit, the court explained.

Failure to hire and retaliation. However, the plaintiff could pursue a gender discrimination claim of failure-to-hire. It was not necessary that she have made a formal application, the court explained. Her complaint provided ample support for her contention that the network had “openly entertained” the possibility of her becoming a full-time contributor. In fact, the court added, at oral argument the defendant appeared to have acknowledged that it did not have a formal application process for such positions. “Despite the opaque process of determining who becomes a contributor,” the court explained, “‘the only way that Fox can winnow people and consider people… is to put them on [a program.]’” By doing so routinely, the defendant sends a signal and “cannot then seek an end-run to a failure-to-hire claim simply because no formal application process exists.”

The plaintiff’s retaliation claims will also proceed to discovery, based on allegations that she attempted to reject the anchor’s sexual advances, to no avail, and that when she did break off the relationship she was blacklisted. Although some courts have rejected the argument that rejection of sexual advances constitutes protected activity, the court noted that doing so tends to “overlook the complex dynamics underlying a work environment fraught with power disparities.” When someone is sexually harassed by a supervisor or someone who has “clout” at their job, she “faces a Hobson’s choice” and is forced to either endure the unwanted advances or to make a complaint that “will inevitably bruise his ego and jeopardize her job and career.” However, a retaliation claim based on the Enquirer leak did not proceed, nor did the plaintiff’s defamation and NYC Gender-Motivated Violence Act claims.

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