Fox News fired Bill O'Reilly this week, the high-water mark in a month-long flood of allegations, boycotts, and pay-outs at the company.
O'Reilly hosted Fox's signature show for political commentary, The O’Reilly Factor, for over 20 years, growing it into the most popular and lucrative program on cable news.
On April 1st, the New York Times revealed several previously undisclosed sexual harassment cases against Bill O'Reilly and the fact that five women received payouts totaling about $13 million from O'Reilly or Fox in exchange for dropping cases against him or agreeing not to speak about their accusations publicly. All of these women worked for or appeared on Fox News. The New York Times found that "the reporting suggests a pattern: As an influential figure in the newsroom, Mr. O’Reilly would create a bond with some women by offering advice and promising to help them professionally. He then would pursue sexual relationships with them, causing some to fear that if they rebuffed him, their careers would stall." He was not convicted of a crime.
Public criticism led to an advertiser boycott involving more than 80 companies.
Then, this week, Fox News' parent company, 20th Century Fox, issued a one-sentence statement: "After a thorough and careful review of the allegations, the Company and Bill O'Reilly have agreed that Bill O'Reilly will not be returning to the Fox News Channel."
Why is it important?
For Fox, this saga is part of a trend: Roger Ailes, the chairman of the network, was ousted in July because of a series of very similar sexual harassment allegations, most notably from Gretchen Carlson, a prominent female anchor on Fox. And in January, Fox star Megan Kelly announced her decision to leave Fox reportedly based in part on "comments by Mr. O’Reilly about the sexual harassment allegations at the network, along with her deep skepticism about whether the network was truly committed to changing its culture." It's not a good moment for the dominant right-wing news organization.
For all of us, no matter what we think about Bill O'Reilly's guilt and innocence, the fact remains that he was not found to have committed the harassment in any public process, much less found guilty of a crime. So we need to consider: 1) the important power of public pressure to compel companies to take moral action versus 2) the need to ensure that individuals not lose their jobs or earning capacity for misconduct of which they were never convicted.
There were certainly enough allegations to warrant in the investigation that led to the firing of Bill O'Reilly. But the truth is we have no idea how thorough or how fair that investigation was. And there are other examples that indicate the importance of a fair process. Remember that Rolling Stone story about a graphic rape at the University of Virginia? The reporter and magazine were later found guilty of defamation—and could easily have ruined students' earning capacity, if not their lives.
We have reached the point where sexual harassment is regarded as serious misconduct. But are we taking the right approach in dealing with allegations of sexual harassment in a way that protects both the alleged victim and the alleged perpetrator?
Should we require criminal prosecution and conviction before a person loses his or her job based on allegations of serious misconduct like sexual assault or harassment?
If only a court decision justifies action, then employers have a perfect excuse not to act. Employers should have employee protections in place and a fair investigation process, but should clearly be able—and asked—to take action even without a criminal prosecution or conviction.
In this case, 20th Century Fox only took action against O’Reilly after an investigation they paid for by law firm Paul, Weiss, Rifkind, Wharton & Garrison uncovered even more complaints against him. Would anyone seriously argue they not be able to do anything about it? They can fire an employee based on anything from poor job performance to poor ratings to disagreement over company direction—but not alleged assault?
Bill Cosby, who faces charges of aggravated indecent assault but has not been found guilty, was censured by the public but did not have a major cable news show at the time. Should Neflix, which had plans for a Cosby comedy special, not be able to cancel them? Should NBC, which was developing a new Cosby show, be forced to follow through unless a court found Cosby guilty of sexual misconduct? Of course not.
In less clear cases, employers and schools should still be able to do what they think best. Teachers accused of sexual assault, whether or not they are convicted, are often dismissed simply because schools don't want to run the risk. That makes perfect sense. Would you want anything else?
The vast majority of extra-legal processes for punishing people accused of crimes are unfair, impractical, and morally wrong. Like a conviction in court, they have the power to ruin people's lives. But unlike a court, they are not bound to gather proper evidence and make an informed decision before they do.
Popular opinion on issues like this, with such a high emotional valence, is often misled. The Rolling Stone article on rape at the University of Virginia was hailed as ground-breaking and vital to the important movement against sexual misconduct at universities.
But that Rolling Stone reporter, Sabrina Rubin Erdely, was found guilty of defamation "with actual malice, in the case brought by Nicole Eramo, a U-Va. administrator who oversaw sexual violence cases at the time of the article’s publication." If Rolling Stone’s article had not been further investigated and debunked, it could easily have led to the accused students being unable to get a job and earn a living for the rest of their lives. A serious moral wrong would have been committed—worse, in the name of moral right.
In general, universities and employers should not act extra-legally; they should not set up processes for taking action against alleged crimes that mimic a court. Because these processes do only mimic a court, they are inherently unreliable and bound to make uninformed and publicly pressured decisions in cases with exceptionally high stakes for the people in them.
- The original New York Times article that broke the story
- "The women who made allegations against Mr. O’Reilly either worked for him or appeared on his show. They have complained about a wide range of behavior, including verbal abuse, lewd comments, unwanted advances and phone calls in which it sounded as if Mr. O’Reilly was masturbating, according to documents and interviews. The reporting suggests a pattern: As an influential figure in the newsroom, Mr. O’Reilly would create a bond with some women by offering advice and promising to help them professionally. He then would pursue sexual relationships with them, causing some to fear that if they rebuffed him, their careers would stall."
- A timeline of the upheaval at Fox News over the last 6 months
- "In a one-sentence statement, 21st Century Fox announces that Mr. O’Reilly, who had been away on vacation, will not return to Fox News, bringing an end to his two-decade reign as one of the most influential commentators in television. The move comes amid new allegations against him."
- A comparison between O’Reilly, Ailes, Cosby, and Trump
- "All these men had long histories of allegedly abusing women. None were deposed from their seats of prominence when those histories first came to light; they were dropped when external forces, including the indignation of the public, made their misdeeds too costly to ignore. Is there some tipping point, some number of victims or degree of severity before which abominable behavior can be excused—and past which no sexual predator is able to keep his job? If so, where does that threshold lie, and what does it take to turn public anger into action? What was it, in other words, that finally brought down one misogynist television star—but elevated another to the presidency?