Recent Fox News Firing Highlights Liability Shield for Employers

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By Jon Steingart

Fox News Channel fired Bob Beckel, one of the hosts of its “The Five” roundtable discussion program, “for making an insensitive remark to an African-American employee,” the network announced May 19.

Beckel stormed out of his office when a black IT employee came to service his computer, saying it was because he was black, the IT employee’s lawyer, Douglas Wigdor, told Bloomberg BNA May 19. The employee filed a complaint against Beckel with human resources, Wigdor said.

Although workplace discrimination law can hold employers liable for their employees’ misconduct, employers can avoid liability by responding swiftly to complaints. Courts recognize “prompt and remedial action” as a defense to lawsuits that say someone engaged in discriminatory conduct in the workplace.

“Remedial action doesn’t necessarily have to mean firing somebody,” Lawrence Peikes, a partner at Wiggin and Dana LLP in Stamford, Conn., told Bloomberg BNA May 19. Peikes represents employers and is a contributor to Bloomberg BNA books on workplace law.

“It might be a firing, it might be a written warning,” Peikes said. “An investigation might find the allegation was unfounded.” An employer should be able to show it had corrective measure in place, including an effective complaint mechanism, he said.

Head of HR Encouraged Reports

The network’s new head of human resources, prior to the incident with Beckel, had sent a company-wide memo encouraging employees to report concerns. “I wanted to reemphasize the message we have been conveying at our training sessions for several months,” Kevin Lord said in an email obtained by Bloomberg BNA. “We want to give you every opportunity to be heard through a vehicle of your choice, so that we can attempt to address your concerns promptly and confidentially.”

Lord’s memo was issued amid reports that the network paid millions in secret settlements to women who said they had been sexually harassed by Bill O’Reilly, formerly its highest rated host.

The IT employee’s complaint against Beckel triggered an immediate probe, a Fox News spokesperson said. “Fox News made the decision to terminate Mr. Beckel after a prompt and thorough investigation,” the spokesperson told Bloomberg BNA in an email May 19. Lord responded and began investigating “within 7 minutes” of receiving the complaint May 16, the spokesperson said.

Lord brought the IT worker, whose name hasn’t been disclosed, into a May 19 meeting with Beckel, where Beckel asked him to withdraw the complaint, said Wigdor, who’s with Wigdor LLP in New York City. “Fox likes to say that they changed, but when you let a victim be intimidated by on air talent it seems to me that nothing changed,” Wigdor said.

“He did apologize to my client at the meeting so I presume he’s not denying making the statement,” Wigdor said. “But for my client keeping his ground Fox never would have terminated him.”

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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