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Source:, October 2004

Will common sense 'Factor' into fracas?

HOLLYWOOD -- Now that Martha Stewart has been confined to Camp Cupcake, we have another mini media scandal, complete, apparently, with incriminating tapes to pick apart.

No, I don't mean the Eisner-Ovitz faceoff in Delaware court, but rather the sexual harassment suit-countersuit between Fox News anchor Bill O'Reilly and staff producer Andrea Mackris.

The issue of sexual harassment is a serious one and cases of intimation and coercion are widespread in corporate America, but give me a break.

Women are still being subjugated, tortured and otherwise humiliated around the world, but we're going to spend court time and taxpayer money parsing the difference between sexual badinage and unwarranted badgering -- most of it on the phone -- before we decide whether to award the accused some $60 million in damages. Where is tort reform when you need it?

Not that the sanctimonious O'Reilly is necessarily innocent. He relishes giving tongue-lashings to his on-air guests on "The O'Reilly Factor"; it's not such a leap to imagine him using that same verbal agility off-air to gain similar sway over whoever is in his orbit.

Impressionable young women can be seduced by the charm or charisma of celeb bosses. (Whether Mackris fits that description remains to be seen.)

Things have changed, however, from 30 years ago when women mostly put up with sexual innuendo in the workplace as simply the way men naturally interacted with them. Now, thanks to the overtime efforts of HR departments, even the most courtly of comments from the most gentlemanly of colleagues is considered out of place.

Given some of the stories coming out about Mackris in the tabs, this case could easily end up discrediting the accuser as much as or more than the alleged abuser.

Several facts are already being seized upon by News Corp. and O'Reilly forces to puncture the plaintiff's case, and to save the company a bunch of money.

For one thing, Mackris worked as an associate producer at "Factor" for four years before leaving in January to work for CNN on "Paula Zahn Now." But she returned in July to Fox News -- a move that has a lot of folks scratching their heads.

"Why on earth did she go back to Fox and why didn't she just hang up on him, and go to his bosses?" many have been wondering.

So, what impact is the brouhaha having on the Fox News star two weeks before the presidential election?

Well, the flap appears to be driving viewers to -- rather than away from -- O'Reilly, who already is cable's most-profitable and most-watched talkshow host. O'Reilly's ratings averaged 3 million viewers the first part of last week, up nearly 30% from his recent performance. And he was up 40% in the key news demo, averaging 975,000 adults 25-54.

But Mackris' allegations have apparently curbed the promotional tour for his bestselling children's book, "The O'Reilly Factor for Kids."

O'Reilly and publisher Harper Entertainment, a sister unit of News Corp., jointly decided to scrub a final round of TV interviews because of the media scrutiny.

O'Reilly has told Fox News viewers that he can't talk about the suit. Whether we'll continue to see O'Reilly the moral arbiter castigate others for disrespect toward women or see him smirk whenever the Clinton-Lewinsky affair is mentioned remains to be seen.

"It angers me that a man as powerful as Mr. Clinton would put his reputation and the country's welfare at risk dealing with a woman this immature," O'Reilly intoned back in 1999. "That speaks volumes about what kind of a man the president truly is."

Still -- and for this you have to appreciate O'Reilly's candor, or at least his savvy in getting ahead of the story -- he intimated on his radio show that suggestive conversations did take place, but said they were in no way harassing.

"I am a stupid guy, and every guy listening knows how that is ... that we are very stupid at times," O'Reilly admitted.

"Just the perception of something off-color is enough to make it so in today's workplace," says David Bowman, a corporate consultant to a number of media congloms.

Meanwhile, Mackris remained on the payroll at Fox News, although the net has asked the court to let it terminate her without violating a New York law that makes it illegal to fire an employee who complains of sexual harassment.

As for current federal law, Bowman says it's quite clear what the procedures should have been in this case.

O'Reilly, as an employee or contractor to News Corp., should have undergone sexual harassment awareness training. If he did and ignored it, he, not News Corp., would be financially liable in the suit; and Mackris, if she simply "perceived" herself to be harassed by O'Reilly's comments, should have complained to his bosses or to HR. If she did, she's on firm ground; if she did not, the judge could throw out the case.

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David Bowman is co-author of three books and Chairman of TTG Consultants, a Los Angeles based Human Resources consulting firm. He speaks on a variety of topics involving career and corporate change. He can be reached at TTG Consultants, 4727 Wilshire Blvd., Suite 400, Los Angeles, CA 90010; 800.736.8840 or by e-mail at TTG's web site is

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