Indictment of Bills

The sexual harassment suit against Bill O'Reilly presents me with a problem similar to the one raised by Bill Clinton's sex scandals: My instinct is to enjoy the spectacle, but my schadenfreude is tempered by my opposition to letting courts award damages for a boss's piggish behavior (assuming it does not violate a contract or rise to the level of assault). Nothing that former producer Andrea Mackris alleges--"offensive sex talk," "unwanted phone sex…while using a vibrator on himself," "describing his fantasies about having sex with her in a shower"--ought to be the basis of a lawsuit. In that light, it's fair for O'Reilly to describe Mackris' demand for $60 million to prevent the case from being filed as an attempt at "extortion," although legally that argument will never fly.

In Clinton's case, I resolved this dilemma with the argument that he deserved to suffer the consequences of the sexual harassment doctrines that he and his fellow Democrats had supported. I'm not sure what O'Reilly's sexual harassment position is [insert your own joke here], but it's notable that so far he has neither denied the specific allegations nor defended his right to discuss his sexual fantasies with any employee who is willing to tolerate it. Instead, he has filed a pre-emptive suit that suggests he and Fox are worried that Mackris can back up her accusations (with recordings of their conversations, among other things).

Leaving aside the demand for damages, Mackris certainly has the right to proclaim O'Reilly an obnoxious pervert. And if he really did behave the way she claims, he probably deserves it. So maybe there's a way to settle this dispute that the lawyers haven't tried: If Mackris waives her right to sue O'Reilly for sexual harassment, he should waive his right to sue her for defamation.

Comments

[R C Dean]

If O'Reilly is worried about tapes, filing a countersuit is a good way to make sure they get heard twice rather than once.

This IS extortion, pure and simple. I don't believe there is ay allegation of an adverse job action. Hell, he kept hiring her back and giving her raises. I think his countersuit is exactly the right response. There have to be incentives on both sides of a lawsuit like this - if filing a false or weak claim has no downside, the system is broken.

[Fred Gillette]

Is this the Friday Fun link?

I've heard several people say the extortion argument will never fly. Why not? Use small words, I'm a civil engineer.

[Matt]

Im new to the libertarian thing, so bear with me. Lets assume for a minute what Mackris accuses O'Reilly of is true. For the sake of discussion lets say she tried to tell him to quit and he wouldnt. What then, Jacob, if not a lawsuit, is the proper course of action. I agree that 60 or 600 million is ridiculously high, but what's the alternative? Why should someone have to tolerate that in a workplace? Why should someone have to come to work prepared for a social battle day after day if a polite, "your my boss, please cease" wont work? As I said before, Im new to the Libertarian ways of knowing, so if this is some obvious answer, go easy on me.

[B.]

Matt-
It is straight forward. If her contract is silent on the issue of damages for this kind of behavior (it most certainly is) she could either; 1) hold Bill in violation of the contract for requiring services that were never outlined in the job description and quit 2) renegotiate the contract 3) just live with it. Anyway, this is how it would work in my libertarian utopia.

[Bill]

Its megamillion dollar frivolous lawsuits like these that make punditry unaffordable to the middle class.

[heh]

Would "fuck me or you're fired" be sufficent basis for a lawsuit in your fantasy world?

I say fantasy world because libertarianism, like communism, is completely unachievable and dangerous when attempted. Look at the US economy from 1870-1930 to see what very low levels of regulation can do to an economy.

[Eric]

If these allegations are true, I wonder if during the sex tax, Bill gave her the last word?

[Jacob Sullum]

Fred: If Mackris' lawsuit is not patently frivolous under current law--and it does not seem to be--then her attempt to get money out of O'Reilly before filing does not count as extortion. As NYU law professor Stephen Gillers told the Times, "Telling someone you will seek legal redress unless they are willing to pay a certain cost is not within the extortion statues as long as you have a plausible basis for your legal claims." Otherwise, every conversation in which a lawyer offers not to file a suit in exchange for payment to his client would be considered extortion, including cases where you and I would agree that the client's claims are perfectly valid. When the law permits suits that it shouldn't (as in this case), I think "exortion" is an accurate description, but it's not one that a court would accept.

Matt: Freedom of contract means that an employee who does not like the way her boss speaks to her, and who can't get him to stop by asking him or by appealing to people higher up in the company, has to choose between putting up with it and quitting. Mackris apparently put up with it for years, then decided to quit, and now wants $600 million for her trouble. But in principle, O'Reilly's (alleged) obnoxious behavior is no different from many other unpleasant aspects of work that people may agree to tolerate in exchange for the money and other benefits a job provides. In the absence of force or fraud, the government should not second-guess the tradeoffs people make in earning a living.

[Eric]

"talk" rather than "tax," of course.

Aargh.

[B.]

heh-
"Would "fuck me or you're fired" be sufficient basis for a lawsuit in your fantasy world?"

If it was a provision of the contract. How absurd would it be for a prostitute to keep the fee and take the John to court?

"Look at the US economy from 1870-1930"

I would like to think I could live my life however I see fit, not as some tool of the US economy. This drives directly to the root of libertarian philosophy. I see the economy, etc. as an external consequence of my (and others) life. Some see it as the purpose; it is reasonable to take from and controll others for the greater good.

[Bill O'Reilly]

Shut up, shut up, shut up!

[SR]

"Look at the US economy from 1870-1930 to see what very low levels of regulation can do to an economy"

Oh, you mean the period in US history when the national standard of living increased literally exponentially, average life expectancy jumped by about a third, and home electricity, indoor plumbing, telephones, radios, and motor cars were either invented outright or switched from being luxuries to being something that even lower middle-class families took for granted? Yeah, that sucked!

[Aaron]

So, Limbaugh is a junky and O'Reilly is sexually harassing the staff. Probably only a matter of time before Hannety gets caught in a furry costume or raping a sheep.

[SM]

"But in principle, O'Reilly's (alleged) obnoxious behavior is no different from many other unpleasant aspects of work that people may agree to tolerate in exchange for the money and other benefits a job provides."

Good grief ! Beg to disagree, while agreeing with Jacob's broader argument. It is very different. One may have to deal with obnoxious characters in the workplace on a daily basis but the unpleasantness usually centers around work-related interaction. TCircumventing idiots is just an aspect of professionalism.
Hey Jacob Sullum, didn't O'Rielly call you a libertine ? Time to extract payback 😉

[Mick]

In the absence of force or fraud, the government should not second-guess the tradeoffs people make in earning a living.

If the complaint is to be believed -- and O'Reilly has not denied its substance -- the following occurred:

1) He verbally assaulted her with an escalating series of sexual comments.

2) She initially endured, even though she was uncomfortable, because she feared for her job not only at Fox but in the industry.

3)The fears seemed well-founded because he overtly warned her that anyone who crossed him would be destroyed by the full force of Roger Ailes and the Fox network.

4)The conduct then escalated, moving from lewd comments to requests that she engage in phone sex with him.

4) Alarmed at the escalation, she tried to avoid his calls.

5) But under the false pretext of a business call, he got her on the phone and subjected her to a verbal sexual assault while he masturbated.

6) She didn't immediately hang up because she feared she would lose her job.

7) But this escalation compelled her to re-think the "tradeoff" she was making to earn a living.

8) She decided enough was enough, the "tradeoff" wasn't worth it, and her only recourse was a legal complaint. Given the previous threats, that's a reasonable conclusion.

Just because he didn't have his hand around her throat doesn't mean he didn't force her into a situation that no business subordinate should have to endure.

Absent refutation or rebuttal, neither of which have been heard, the facts she's laid out are a strong cause of action. Seeking legal redress and compensation isn't extortion, and the amount her started at is irrlevant.

If the facts as she describes them are true, O'Reilly is not just a pig -- he's a civil offender who used force to coerce a subordinate to have phone sex with him.

[B.]

Mick
'no business subordinate should have to endure.'

She didn't have to, she just liked her job enough to (at least for a while).

[Eric II]

"In Clinton's case, I resolved this dilemma with the argument that he deserved to suffer the consequences of the sexual harassment doctrines that he and his fellow Democrats had supported."

And it's for a similar reason that schadenfreude is well-deserved in the O'Reilly saga. This bombastic, megalomaniacal oaf may have never defended the left-wing line on sexual harrassment, but he sure as hell has annointed himself a populist defender of "traditional values" against exploitative Hollywood elites, using his televised bully pulpit to belittle or demonize anyone who questioned his helium-laden proclamations on the matter.

Yet if Mackris' claims are true, then the moralizing, narcissistic windbag had no qualms about initiating completely unsolicited sex talks with a subordinate that were at least as graphic as anything that you'd find in an Eminem album. And all while he's married to another woman - a woman whom he happens to talk about cheating on while she's pregnant.

This is every bit as pathetic and worthy of ridicule as the televangalist scandals of another era. And that's just without the vibrator comments.

[joe]

She was perfectly free to quit. And not buy groceries for the kids for a couple weeks.

You know, libertoid freedom. You degrade your employess, exploit the power you have over them, and your punishement is to hire a new employee when the old one finally works up the courage to quit.

It's not like a boss has any coercive power over an employee.

[Aaron]

So, Limbaugh is a junky and O'Reilly is sexually harassing the staff. Probably only a matter of time before Hannety gets caught in a furry costume or raping a sheep.

[Todd Fletcher]

I think she should have just kneed him in the crackers - if he has any.

[trainwreck]

Maybe her contract had a grievance clause and they chose to ignore it? So you know all the facts??

[PapayaSF]

SR, thank you for correcting heh's bizarre ahistorical comment. Saves me the trouble.

Mick, the idea that the woman couldn't just hang up the damn phone seems odd to me. Hang up, then if you get fired or demoted or whatever, you've got a real case. This is too Anita Hill-ish for me: "I was horribly tormented but stayed around him for years and everybody who saw us together thought things were peachy."

And Jacob, I wouldn't be too quick to say the extortion claim won't fly legally. Autumn Jackson was convicted of extortion for something similar when she wanted big bucks from Bill Cosby in a paternity case (though her conviction was later overturned).

[B.]

joe-
"She was perfectly free to quit. And not buy groceries for the kids for a couple weeks."

You wouldn't help her out? I see your philanthropy is limited to other peoples tax dollars.

[Todd Fletcher]

...or couldn't she have said "knock it off or I'll blow the whistle on you and destroy your career"?

[dhex]

joe: and in return, his career gets sunk, and he gets sued, and all that jazz. it's the great tao of freedom. 🙂

[Call me snake]

This is delicious, like Rather the crown jewel of a network is taken down by arrogance, hubris, etc. The mere fact that he thought he was unaccountable for the stuff on the soon to be released tapes is grounds for dismissal.

His last hope may be to claim/prove an intimate physical relationship where these kinds of things were discussed "offline."

[dead_elvis]

I happen to like laws that prohibit that kind of behavior. I'm annoyed that Libertarian Orthodoxy would require people to put up with that crap. IMHO, this is where ideology has crossed the line of common sense.

[Zell Miller]

Enough of these namby pamby frivolous lawsuits heard by activist judges. I say pistols at 40 feet.

[Jason Bourne]

I have no problem with this sort of law. The employer-employee (master-servant if you will) relationship creates, by its very existance, a certain set of legal obligations, and that set og obligations should include prohibitions against this sort of behavior.

[Skeptikos]

Jason Bourne, EXACTLY!

B.

Towards the contract comments:
1 High probability that Fox has harassment policies (sexual and otherwise) in place at the time this occurred.

2 If a corporation has such policies in place, they do not have to be specifically mentioned in each contract. I have done a lot of contract work. Even should items such as dress code are not elaborated, company policy books are often inclusive.

High probability that this was a violation of contract, in which case is not incumbent on the object of violation, but on the subject or initiator to remove themselves and/or correct violation.

It seems to me this is the perfect libertarian solution. Sue him for violating the contract, not ask the government too. In this case it seems that the government is only being asked to referee a contract issue. As a libertarian solution, I would accept any third party arbitration that the two parties could agree on within the bounds of the appropriate contracts.

In your "Libertarian Utopia" is there a point at which you get to stand your ground, or does the weaker party always have to concede? Is there a dividing point at which anyone must honor their contracts, or is it just a matter of might makes right?

If Fox does have a sexual Harassment policy, and if this does violate it, why does she have to surrender her freedom of action?

It seems to me that she is asserting that this was in violation of the contract, and in lieu of an appropriate settlement she would like a third party arbitrator to asses the level of violation. While he is preemptively asserting that the motive is political. I feel fairly confident that political motivation is mentioned neither within her contract, nor within company policy. The most anti-freemarket reaction of the two seems to be his. Perhaps I am mistaken, but it seems to me that his argument is that he was not bound by appropriate contractual limits.

I am making an assumption towards the existence of written harassment policies in regards to employee and contractor behavior within Fox, and I would love to see them in reference to this case. However, knowing my own experience, I can make a fairly educated guess what was in them, and I feel comfortable putting my assumptions within the 90%+ area of probability. I personally have never worked with a company of over 50 people that did not have such duties laid out in legal form.

[Jason Bourne]

The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

O'Reilly has to prove such wrongful use before he can claim victory.

R.C. Dean,

Under current law, adverse job action is not required.

[Dabney Braggart]

Bill Clinton was not guilty of sexual harassment; he engaged in voluntary activity initiated by his subordinate.

He should not have done so, both on general principles (living up to his marriage vows) and because of his support for sexual harassment statutes, the latter not because he was in violation of them but because he created a situation that might easily be mistaken for it by (willfully?) ignorant and used as an excuse or model by those actually harassing. (This is the same principle that prohibits the mixing of chicken and milk within the Jewish dietary laws: it doesn't violate the "setthing in its mother's milk" law, but since cooked chicken could be mistaken for veal, an ignorant person might see someone versed in the Law and come to the wrong conclusions---the dialoguists of the Talmud were wrong about the God stuff, but they knew human natures [sic] pretty damn well.)

Bill O'Reilly, is both accused of worse, and espouses a philosophy in which personal responsibility is the major restraint on behaviour, in the absence of laws and a lot of the ability to bring suit (I gather he's un-libertarian enough to want tort "reform", i.e. a restriction of the rights to seek redress and to make contracts.) He should behave rather as the very Mirror of a boss in a deregulated world, otherwise he will contribute to the impression that we will exchange the (usually) soft tyranny of the government for the immediate and cutting tyranny of the Boss.

[Jason Bourne]

Skepticos,

Often a contract will incorporate explicitly the company's guidelines on employer-employee relations; and those guidelines generally include the company's sexual harassment policy.

[B.]

Skeptikos
"In your "Libertarian Utopia" is there a point at which you get to stand your ground, or does the weaker party always have to concede? Is there a dividing point at which anyone must honor their contracts, or is it just a matter of might makes right?"

You missunderstood my post. My point was parities should be able to enter into any kind of contract and that should be the basis for arbitration. However, this is not the case. Example; I cannot run a business where I openly advocate sleeping to the top.

[B.]

-aside from porn.

[hey]

ummm... people who are actually lawyers (actually renowned law professors and such who are experts in these matters) at the volokh conspiracy have discussed this

a) it appears that according to NY and US law, harrassment needs adverse job action or an ignored complaint

b) news and fox have employee handbooks and harassment policies, laying out appropriate procedures to make complaints etc

c) she had no complaints, left fox, came back, and wrote 2 weeks prior to complaint in a letter to a friend that she loved fox and would never leave after her time at cnn

d) her first complaint was a lawsuit demanding $60M, signficantly larger than likely award. volokh and other lawyers on web have discussed (and supreme court precedent and law review articles sited) how a legitimate claim can turn into extortion when the amount is so vastly disproprotionate to likely result... it a perfectly reasonable tactic to ask for likely or max recent trial verdict + lawyer and time costs (say that demand was for 5-10 million, this would likely be in the ballpark, though at the warning track). see volokh conspiracy for further elucidation by actual law professors who have been cited on tis issue by the supreme court... i.e. they know what they're talking about

other than all the above, the behaviour looks idiotic and callous... i'd fire someone who did this... but its not a matter for a lwasuit (though suing someone who fired you cause you didn't play along with this is different)

[Jacob T. Levy]

Separate questions:
1) Should an employer and employee be free to set a contract in which the former providing sexual favors to the latter is a term of employment?

2) If an employment contract is silent on the question, should the default rule be to interpret the contract as if it permitted, or as if it did not permit, demands for sexual favors or direct sexual intimidation?

Seems straightforward to me that the answer to (1) is yes and the answer to (2) is "did not permit"-- especially in a corporate context. Corporate employees aren't allowed to appropriate company property to their own use (though one could imagine an employment contract that permitted it). Corporate HR personnel aren't allowed to extract personal payment from applicants in order to get their applications read or in order to get jobs (though, ditto.) There's a general background norm that the office's time, property, and other people should be used for office purposes and not for personal gain or gratification. If some boss really wanted the ability to inflict unpleasant working conditions, including unwanted sexual attention, on his subordinates, well, then, he could bargain for that right, sacrificing some other compensation appropriately. And the corporation could pay his subordinates proportionately more, for putting up with otherwise-undesirable working conditions.

But I suspect that, in such circumstances, you'd find few bosses willing to own up to a desire to treat their subordinates in such a fashion, and few corporations that were comfortable having to list job descriptions that said "base salary plus 20% sexual hazard pay." The unwillingness to own up to it or to publicly commit to sexual favors as a condition of employment suggests to me that our background norm is one of assuming the workplace to be free of such things.

But, with *either* default rule clearly stated, one could contract around it. I think that, if sexual harassment law were abolished tomorrow, standard employment contracts and binding employee handbooks would continue to disallow most forms of superordinate-subordinate sexual attention. We'd just get a few notorious CEOs who contracted around those provisions, preferring sexual-subordinate secretaries to extra cash compensation.

But there's no reason to assume that libertarian freedom of contract is, or should be, equivalent to a blank check to bosses-- and therefore no reason for a knee-jerk reaction that what O'Reilly did was fine.

[Jason Bourne]

hey,

Nothing you've stated undermined my statements; indeed, it tends to confirm my statements if anything; so I don't know what you are prattling on about.

[fyodor]

Jason,

Maybe, just maybe, he was "prattling on" in agreement with you??

Jacob T. Levy,

First, I don't think anyone here called O'Reilly's behavior "fine." Only that it shouldn't be legally actionable.

Next, what you're saying in a nutshell seems to be that O'Reilly violated an implied contract. Does that sound like a reasonable summary?

Personally, I'm not sure where I stand on the entire idea of implied contracts. Certainly it was reasonable for the employee to not expect that O'Reilly would treat her the way he did. But then, and this is to Jason Bourne too, there are many obnoxious things a boss may do that may lie outside the expectations that employees and of the corporation that employs both parties. What if someone is fired for not supporting the home football team? What if the boss is a general all around jerk? It certainly seems that sexual harrassment is treated differently than other forms of behavior that would fall under the same general notion of bad behavior that one would not expect from one's boss in a professional office.

[fyodor]

Jason Bourne,

I take back my first comment to you; did not realize you were responding to "hey".

[fyodor]

Jason Bourne,

I take back my first comment to you; did not realize you were responding to "hey".

[Jason Bourne]

fyodor,

Yeah, "hey" is an annoying nickname. 🙂

Regarding the issue of implied contracts, the master-servant relationship, you are right, it is difficult to do line-drawing. However, I would argue that normative business practices have evolved to the point where sexual harassment is considered a violation of this relationship. In the law we deal with how the norms of business work in many fields to determine if liability exists - and it is those norms I would look to here.

[Dick Morris]

"have sex with me or else you'll be fired" Is what I say to my hookers all the time.

What is wrong with that?

[The Lonewacko Blog]

Here's the best part of the complaint: Bill's Big Falafel Balls. Bear in mind, that's a to-the-letter accurate transcription of the complaint.

[Jacob T. Levy]

re: implied contract-- *given* existing sexual harassment law, there's been no need to say clearly that the default employment-contract rule is that superordinates don't have the privilege to sexually exploit their subordinates. There's no reason for either firms or courts to develop contracts or contract law *as if* sexual harassment law *didn't* exist. So, no, I'm not arguing that O'Reilly simply *is* guilty of violating an implied contract. I'm arguing that, under the counterfactual of there being no sexual harassment law, it's reasonable to think either

a) that no-sexual-harassment would get built into employment contract law as a default rule
or
b) that no-sexual-harassment rules would be made an *explicit* part of most employment contracts through employee handbooks and the like.

The sexual harassment law that would get developed as part of contract law would almost certainly be milder and less intrusive than current sexual harassment law, and would focus more exclusively on superordinate-subordinate issues. But O'Reilly's alleged conduct would still fall squarely within the category of usually-prohibited behavior. That is, under the counterfactual legal universe O'Reilly's behavior wouldn't just be boorish; it would very likely be a contract violation.

Statutory rules often displace private (property-rights- or contract-based) solutions to a problem. Objections to a statutory regime doesn't by itself lead to the conclusion that the prohibitied behavior would be permissible in a free-contract regime-- just like objections to a given pollution regulation is compatible with thinking that, in the counterfactual legal universe, the same act of pollution would be prohibited by property and tort law. In the here-and-now, we shouldn't regret the prosecution of offenses that should have been prosecuted under a better set of legal rules.

[raymond]

This bombastic, megalomaniacal oaf ... sure as hell has annointed himself a populist defender of "traditional values" against exploitative Hollywood elites...

If he didn't rhyme and rap, then I see no problem with O'Reilly's talking like a disgusting pig. It's the beat that makes something unacceptable, apparently. And maybe the speaker's skin colour.

This in no way deprives you of liberty or property. You just may not like it and perhaps it makes you feel sad. Suck it up. Clearly those poor soles in abu Ghraib were deprived of liberty. This is a far cry from having their feelings hurt because someone let them know they didn't like them or their lifestyle.

As the great thinker "B." said in another thread, "Suck it up", sweetheart. Maybe your feelings were offended, but you weren't deprived of liberty or property. O'Reilly's (alleged) dirty phone-talk is protected by the first amendment. No?

these are things that YOU find offensive, belittling and antithetical to dignity. Give me a break. Liberty means we will all be faced with opinions that are disgusting. Hateful, repugnant opinions. In the context of the first amendment the state has an overwhelming interest in penalizing speech that directly leads to violence or property damage.

Yup, B. Where is the state's interest (as if the state has any interest other than securing the rights of the people) in penalizing O'Reilly's speech? So what if his opinions about sex are disgusting to you?

My point was parities should be able to enter into any kind of contract and that should be the basis for arbitration. However, this is not the case.

Can a person give up his first amendment rights in a contract? Can any contract override the Bill of Rights? (Serious question.)

Example; I cannot run a business where I openly advocate sleeping to the top.

Why not? Do you mean to tell me there are situations other than "violence or property damage" that can limit speech?

To recognize a right not to be offended would insert the state/society into the subjective minutia of interpersonal relations. Aside from the practical nightmare of such, I just don't think such a right exists, whoever else thinks otherwise. (fyodor)

Since she hasn 't got a right not to be offended, wouldn't forbidding O'Reilly to talk to an employee in this way be a... nightmare?

[Jacob T. Levy]

Raymond,

Sure. One can, by contract, waive particular exercises of one's right to free speech. Happens all the time: confidentiality agreements, for example. The First Amendment no more enters into it than my general right to own property is impaired by my selling you a particular piece of property. The waiving of particular exercises of background rights is what contracting is all about. I have background rights to dress how I want (including no clothes at all), sleep however late I want, say what I want, and preach hellfire and damnation to whomever I want. When I accept a job and agree to carry myself in a professional manner, I waive my ability to assert those rights against the firm's rules governing dress code, working hours, sexual harassment, confidentiality, and general workplace decorum. I keep the ability to assert the rights against other actors, including the state; I haven't "given up" First Amendment or other rights. But I've waived their exercise against a particular actor.

[raymond]

Thanks, JTL. (You're a lawyer, right? 🙂 Or something lawyer-ish.)

Am I right in thinking that one of the roles of the state is to enforce contracts?

In your explanation two posts up, you mention sexual-harrassment laws. Am I right in thinking that Congress has made laws reducing the scope of freedom of speech, and that it is these laws which are implied in the contract?

Since the only valid role of the state is to secure the rights of the people, in your opinion, which right is being secured by such laws?

If O'Reilly had picked ladies at random in the phone book, could they sue? Or does the 1st amendment protect this speech? How about if he stood on the street corner speaking to girls waiting for the bus?

When I accept a job and agree to carry myself in a professional manner, I waive my ability to assert those rights against the firm's rules governing dress code, working hours, sexual harassment, confidentiality, and general workplace decorum.

Do you waive your ability to assert your rights only while working, or in any circumstance? (I have heard that there have been cases of coworkers being fired for dating outside working hours. I don't know how they have been resolved, but they struck me as bizarre.)

Could O'Reilly argue that he was not phoning as an employee of Fox but rather as a friend of the ass't producer, and therefore that the firm's rules didn't apply?

Since if there is a contract violation, the "victim" in this case is Fox and not the ass't producer, shouldn't it be Fox who's bringing suit? And, if they decline to sue for breach of contract, what right does the ass't producer have to file suit? The broken contract is between Fox and O'Reilly, after all, and not O'Reilly and the producer. (The article isn't clear if she's an O'Reilly producer or a Fox producer. Or perhaps she's both.)

[fyodor]

raymond,

You ask a lot of questions for somebody from New Jersey, or wherever you're from! 🙂

[fyodor]

raymond,

I try always to be libertarian in thought, word, and deed.

Well you're failing miserably! At least "in word."

Some might argue that the US employment situation today and the extraordinary level of (private) debt make such employees extremely rare.

That's just silly. Sure things are a little worse than five years ago, but we're hardly a third world nation. Interesting how you attribute the thought to "some [who] might argue" so as to be able to include it without having to take direct responsibility for it yourself.

The real world, in other words, doesn't function the way you suggest. Boss equals powerful.

I made it clear that I understand it works both ways. My only point was that it doesn't always go one way. You, OTOH, evidently have a stick-figure view of the world.

BTW, somewhere someone suggested that the producer in question was probably making in the neighborhood of 100K. If anywhere near true (and it seems perfectly plausible), she wasn't likely to have to go without groceries till she found her next job. And the person who raised this figure was actually defending her, IIRC, saying it would be tough for to find another job that paid as well. Exactly the point of MY side! She made a rational decision that the situation, however difficult in some ways, was WORTH IT.

I assent to the idea of property rights and capitalism. imo, One's time, physical and mental activity, and what one uses them to obtain are "property." "Capital." So I tend to see a worker as a fellow investor in his company.

Well that's a pretty silly thing to assent to. Just because you think of someone's work as an "investment" doesn't mean there's any reason for anyone else to think of it that way, including the people who count, i.e., the genuine investors who invested real money as part of a bona fide deal. If a worker has a contract stipulating what's coloquially known as "sweat equity," then you're right. If the contract or understanding is that they're working for the pay, the worker has no right to claim an investment. Simple as that.

Dominance-and-submission comes into play in most human interactions.

True enough, and that's why it's so important to nip your kind of thinking in the bud, because otherwise it's an open invitation for the state to become involved in "most human interactions," which would be quite not good.

I do think this is a free-speech issue. And so I _do_ think the state has an obligation to protect workers from such speech violence as O'Reilly is accused of.

Workers and anyone and everyone else, if I follow your logic. I fervently wish you the worst of luck in convincing anyone else to adopt such a low standard for accepting "speech" as "violence."

Not a single question mark to be seen. I hope you're proud of me.

I wouldn't go that far, but at least you made yourself clear enough so that I could respond.

New Jersey

hohoho

Always good for a laugh!! 🙂

[fyodor]

Jacob T. Levy,

I've been thinking more about your point that in lieu of sexual discrimination law, such practices would likely be proscribed by employment contracts and therefore actionable under tort law anyway, so no need to make a fuss about the current situation.

But even if you're absolutely correct about your counterfactual, I think there's still a big difference.

You probably know more about this than I do so correct if I'm wrong, but when you sue someone for breach of contract, you're not doing that literally so much as using that as a basis to sue for the damages that ensued from the breach, right?

Now, I was previously tempted to bring up the $60 million demand as out of line with your formulation of the matter, but I didn't because A) it was somehow too obvious to seem worth mentioning, and B) we all know that's an initial demand and is subject to coming down.

However, if all that's really taken place is a breach of implied contract, I would think the next logical question is what damages were incurred as a result of this breach?

All she could reasonably claim that I could see would be the time and lost wages accrued from quitting and finding another job. Maybe more if she had moved to take the job with O'Reilly. In even the most extreme of reasonable scenarios, one would be hard pressed to imagine anything topping five figures. I can't imagine even an initial demand of $60 mil if such matters were viewed this way!

So again, even if you're absolutely 100% unequivocally accurate in your analysis of the situation, things are still more than a little closer to being way the hell off than from being the way they should be.

Most likely Mackris is justifying her huge demand on the grounds that she suffered at O'Reilly's hands for so long. But of course it was her decision to remain in the situation, and that O'Reilly's behavior may have transgressed against proper norms of behavior enough to constitute a breach of faith or contract does not change that one bit.

[fyodor]

Am I in a time-warp, or did a bunch of posts just get deleted???

And raymond was so proud of his lack of question marks!!!

[Douglas Fletcher]

All the comments I made yesterday are gone, gone, gone.

How will Western Civilization make it without them?

[Ted Bell]

All the women who work for me understand what the job duties can entail and they're ok with it. After all, I'm Ted Bell.

[Bobby Dooley]

Hey Ted, put this in your mouth.

[B.]

raymond-

To respond to your post that has vanished into nothingness. Libel is easy, it is fraud and by definition economically damaging.

?If O'Reilly had picked ladies at random in the phone book, could they sue??

I think a case could be made for theft and harassment if the calls were persistent. The two alternatives for this random lady are either not answering the phone when it rings (she has now lost the benefit of her purchased phone service) or endure the calls so as not to lose the benefit (a clear imposition in her home). However, I can?t see one or two calls making the case. I?m curious how you stand on the do-not-call registry.

[fyodor]

B.,

I would think of libel more as theft than fraud because the party being harmed is not necessarily someone who had entered into any sort of contractual arrangement with the libeler.

Either way, the important point is that effects of the libelous speech must be shown that go beyond mere hurt feelings for there to be damages.

[raymond]

Dignity inheres in (persons) because they are destined to be free to reflect and to choose, and thus to be provident over the course of their own lives, responsible for their own actions. A person is capable of insight, love, and long-term commitment. Such creatures are deserving of respect from other rational creatures. Their inherent nature makes civilization possible, since civilization is constituted by conversation, the art of persuasion through reason, mutual respect.

Human Dignity, Human Rights

(Though I'd heard the name, I haven't been able to figure out from googling him whether he's a "neocon", a libertarian, or a communitarian. Whatever label he may merit, he undoubtedly gets called "silly" and "a tool" a lot.)

B. has assented to certain notions. It is apparent that he has worked through his notions in fine detail. His details hang together. His notions work for him.

I have assented to other notions; specifically here, a right to Dignity. My notions work for me.

So. So long as B. doesn't follow me around shouting "fifi" or call me every day making o'reilly-esque requests, so long as he doesn't do these things to others, with the result that such behaviour becomes accepted practice and thus puts me (or people whose well-being I have incorporated into my own) at risk, I can live with it.

fyodor seems unable or unwilling to go beyond the notion that Dignity violated equals "mere hurt feelings". So long as he doesn't complicate my life, I can live with that, too. (Besides, it's a good reminder that I need to hone my persuasion skills.)

What does risk putting me in danger is the belief that freedom of speech includes the idea of obligation to hear. Civilized, mature human beings shouldn't have to be prepared to stick their fingers in their ears and go "la la la" everytime O'Reilly calls.

re: the do-not-call registry

The day will come when phone manufacturers develop an effective "spam filter" for their phones. Until then, I'll continue to screen all my calls.

btw. Here, where I live, we can put a sticker on our (physical, snail-mail) mailboxes stating "No Junk Mail". It works.

(I hope this doesn't get deleted. This blog violated my right to free speech on Sunday! And, BOY are my FEELINGS ever HURT!!!)

[fyodor]

"What does risk putting me in danger is the belief that freedom of speech includes the idea of obligation to hear. Civilized, mature human beings shouldn't have to be prepared to stick their fingers in their ears and go "la la la" everytime O'Reilly calls."

I believe phone harrassment, as defined by someone calling repeatedly after he is told his calls are not welcome, is a crime, and well it ought. That's because unwelcome calling is a form of trespass. Why the calls are unwelcome to the callee is actually besides the point, that's his or her own business. One can find calls unwelcome for any damn reason. What makes sexual harrassment in an employment situation different is that whereas one has a right to one's privacy in one's home, one does not have a right to a particular job. Therefore, behavior of a boss or co-worker that makes keeping a job more difficult than it otherwise would have been is not a violation of the employee's rights. Except maybe as a violation of implied contract, as discussed above, which I have been duly persuaded is a genuine issue to consider, although, as I also stated above, the damages of such would never come close to the damages typically sought and often won in sexual harrassment cases.

As to how all this applies to O'Reilly, if he called her repeatedly after she told him not to, then he certainly deserves sanction from the law. And if this were all Mackris was accusing him of, probably no one here would have a problem with that. But of course, she can get a lot more money from an employment based sexual harrassment case, a case she only has because she stuck with the employment long after the harrassment commenced. It's that hypocrisy which is encouraged by sexual harrassment law which many here take exception to.

As for fifi-calling, I may not agree with that person's use of his right to free speech, but I still defend his right to say nasty things as long as they don't cross the line to threatening violence. And I still don't care who claims a right to dignity, I still say that while assuming people are worthy of esteem is a nice thing to do, no one has the right to be thought of highly, only the right to be treated justly, i.e., as a sovereign of their own person and actions.

[fyodor]

"as long as they don't cross the line to threatening violence"

Allow me to add to that, "or to trespass."

[Jamie S]

I really can't believe that a lot of people in this forum think harrassing behavior is okay, because the employee can always quit. I know this is going back quite a few posts, but folks: please try and use some common sense here. If you are the boss, you can't call your employees and talk about showering with them if they don't pretty much explicitly encourage the behavior. Who knows, maybe she was a willing participant, but if Fox can't prove it - this guy is going down hard, and rightfully so. Even if it was all consensual, Fox should be censuring Bill for the sheer innapropriatness of the relationship rather than trying to counterattack. I'm only glad that my grandfather (A huge Oreilly fan) didn't live to see this - he would have thrown his radio through the window. Goodbye Fox News, Hello MSNBC.

[David Nieporent]

Jamie, there are lots of things that aren't "okay" that do not warrant government intervention.

[geronimo]

Theories are great. Real life can be more complicated.

I'm a deeply closeted gay guy who works and rents.

If someone stands outside my house with a big sign saying: "Geronimo is Queer", I risk losing both my job and my home.

Nobody has the right to do that to me. Nobody has the right to destroy me because he's got a right to free speech.

And o'reilly hasn't got the right to phone me up and talk dirty, either. (But Johnny Depp may.)