But, I have some thoughts, based on what I know of her personality and personal beliefs and the high standards she set for herself.
For O'Reilly to settle for $32 million, which is the largest Fox-related settlement to date, I suspect the abuse she allegedly suffered took place over many years.
I was a little perplexed at the term "non-consensual sexual relationship" that the New York Times reported she originally alleged. I think most people interpret that as having sex, but in legal parlance, it doesn't necessarily mean that.
According to EEOC guidelines,
Title VII does not proscribe all conduct of a sexual nature in the workplace. Thus it is crucial to clearly define sexual harassment: only unwelcome sexual conduct that is a term or condition of employment constitutes a violation. 29 C.F.R. § 1604.11(a)..... The Guidelines provide that “unwelcome” sexual conduct constitutes sexual harassment when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,” 29 C.F.R § 1604.11 (a) (1).
b) Conduct Must Be "Unwelcome" - Citing the EEOC's Guidelines, the Court said the gravamen of a sexual harassment claim is that the alleged sexual advances were "unwelcome." 106 S. Ct. at 2406. Therefore, "the fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. . . . . The correct inquiry is whether [the victim] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary." Id.
...A. Determining Whether Sexual Conduct Is Unwelcome
Sexual harassment is "unwelcome . . . verbal or physical conduct of a sexual nature . . . ." 29 C.F.R. § 1604.11(a). Because sexual attraction may often play a role in the day-to-day social exchange between employees, "the distinction between invited, uninvited-but-welcome, offensive- but-tolerated, and flatly rejected" sexual advances may well be difficult to discern. Barnes v. Costle, 561 F.2d 983, 999, 14 EPD ¶ 7755 (D.C. Cir. 1977) (MacKinnon J., concurring). But this distinction is essential because sexual conduct becomes unlawful only when it is unwelcome. The Eleventh Circuit provided a general definition of "unwelcome conduct" in Henson v. City of Dundee, 682 F.2d at 903: the challenged conduct must be unwelcome "in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive."
When confronted with conflicting evidence as to welcomeness, the Commission looks "at the record as a whole and at the totality of circumstances . . . ." 29 C.F.R. § 1604.11(b), evaluating each situation on a case-by-case basis. When there is some indication of welcomeness or when the credibility of the parties is at issue, the charging party's claim will be considerably strengthened if she made a contemporaneous complaint or protest.7 ... Thus, in investigating sexual harassment charges, it is important to develop detailed evidence of the circumstances and nature of any such complaints or protests, whether to the alleged harasser, higher management, co-workers or others.
So could a non-consensual sexual relationship could include years of repeatedly asking for sex despite being turned down, years of unwelcome massages or other touching of body parts, years of phone calls with lewd comments and sexual suggestions or one sided phone sex? How about an attempt at sexual assault? I don't know the answer since it's not my area of law, but I suspect those types of things, rather than actually having sex, are the root of the allegations. In a million years, I can't imagine Lis Wiehl agreeing to have sex with Bill O'Reilly.
I read somewhere that the $32 million is a payout over time, not a lump sum. If O'Reilly can't get a job from here on out, will he actually pay up? The agreement reportedly provides both parties are to destroy the evidence. If he stops paying, or is in default of the agreement, how would she prove the charges in court if her cororborating evidence has been destroyed? If he defaults, does the agreement provide the statute of limitations stops running? Also, could he discharge the debt in bankruptcy?
One last thing: Could the New York DA open a criminal investigation? If he did, I think the non-disclosure clause is pretty meaningless and she could be forced to testify. And at least as to email evidence, while the parties and lawyers might have erased it, if they still have the same computers, law enforcement could probably get the computers with a search warrant and recover the lost data.
The media interest in this seems to be that Fox renewed O'Reilly's contract after learning of Lis's claim. I think a fair reading of the very concise affidavit is that Lis' draft complaint included Fox as well as O'Reilly. Otherwise, why put in the affidavit that Lis also settled her claims with Fox?
Bill O'Reilly wants to blame everyone from G-d to the media and his accusers for his current state of affairs. The problem is the allegations against him are not new and are multiple and similar in nature . He just doesn't seem like a nice guy warranting our sympathy. His worst decision may be taking over as his own chief publicist.
