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NY Judge Considers Dismissing Fox News Sexual Harassment Suit

An attorney for fired Fox News pundit Ed Henry characterized the text message exchange at the center of a contributor’s sexual harassment claims as “personal meme war conversations” between two consenting adults.

MANHATTAN (CN) — A New York federal judge on Tuesday weighed the possible dismissal of sexual harassment and retaliation claims brought against Fox News and canned pundit Ed Henry.

Attorneys for Fox News and Henry moved to have a contributor’s sexual harassment claims tossed on Tuesday because the accuser — Cathy Areu, a recurring on-air contributor dubbed “The Liberal Sherpa” — was never actually a paid employee for the cable news network.

Shortly after Fox News fired Ed Henry over a workplace sexual misconduct allegation last summer, Jennifer Eckhart, a former associate producer at Fox Business filed a federal lawsuit accusing the former top anchor of having violently raped her years ago and claiming the network knew about the allegation since 2017.

Areu, who appeared as a guest on the network, joined Eckhart’s lawsuit in the Southern District of New York as a co-plaintiff with sexual harassment allegations against Henry and other top Fox News personalities: Sean Hannity, Tucker Carlson and Howard Kurtz.

While U.S. District Judge Ronnie Abrams reserved her ruling pending motions to dismiss Areu’s claims, she asked the parties on Tuesday whether they thought Areu could sufficiently plead some type of a contract to be considered an employee of Fox News under the law if the judge were to grant her leave to amend.

During the nearly two-hour in-person hearing, Judge Abrams questioned Fox News’ attorney Kathleen M. McKenna, of Proskauer Rose LLP, whether it was her view that rejecting a sexual advance of a supervisor is never a protected activity, or is only unprotected in Areu’s case.

“I don’t even think she established that she refused advances,” McKenna responded.

Pressed by Judge Abrams if on-air plugs for Areu’s website and podcast resulted in any monetary benefit, Fox News’ counsel affirmed “she was an unpaid guest; she was never an employee.”

In contrast with Eckhart’s graphic allegations of rape, Areu does not allege sexual assault; she claims that Henry and other major figures at Fox bombarded her with unwelcome comments, advances and images.

In her original complaint, Areu asserted that Henry sent her “wildly inappropriate sexual images,” including a “closeup” photograph of a woman’s vagina being “clamped” closed by four clothespins and a picture of a vibrator smoking a cigarette.

During Tuesday’s hearing, Henry’s attorney Catherine Foti characterized text message exchanges between the pundit and Areu as “personal meme war conversations,” and noting that Areu texted Henry in those same text conversations, “You’re like the nicest person on the planet . . . You’re awesome” and “You let me win at GIF/meme wars.”

Foti, an attorney with Morvillo Abramowitz Grand Iason & Anello PC, characterized the meme exchanges as “odd” but noted that the applicable employment laws — the New York Human Rights Law and the New York City Human Rights Law — were not “civility codes” and would not apply because Areu is not an employee of Fox News.

In support of his motion to dismiss, Henry’s attorneys accused Areu of selectively quoting their text message exchanges in an attempt “to bolster her meritless claims of harassment.”

“For example, although Areu describes a photograph Mr. Henry sent her of ‘a rubber glove where each finger appears to be a dildo and/or ribbed like a condom,’ she fails to mention the image she sent in response of a nude President Trump having a tube inserted into his buttocks which is connected to a bottle of Clorox with the caption, ‘I know it burns Mr. President, but just hang on tight. Your coronavirus treatment is almost complete,’” Henry’s filing states.

Last October, U.S. District Judge Ronnie Abrams ordered Eckhart and Areu to sever their claims into two separate suits.

“At Fox News, this hiring process is much like the ‘casting couch’ of Hollywood where female contributors are subjected to different standards for obtaining a paid role or position in the Fox News family. Like Ms. Areu, many women join Fox News through an unpaid contributor or analyst role with the expectation and understanding that if they perform, and their ratings meet expectations, there is a permanent, paid position at Fox News waiting for them,” Areu’s amended complaint states.

Areu’s amended complaint also accuses Fox News of leaking cherry-picked emails to the media to portray her as someone who invited sexual harassment.

The amended complaint also alleges a “pay for play” environment at Fox News, where female contributors are forced to give in to sexual advances from “various men in positions of power” in order to succeed.

Ed Henry moved to have Areu’s amended complaint for failure to state a claim that he was her employer or supervisor.

“Plaintiff, in this case, is plainly not an employee within the meaning of the [New York human rights laws]. As plaintiff readily admits, she was never paid by Fox News and certainly never by Mr. Henry. While plaintiff alleges that she wanted to be employed by Fox News, her wishing it does not make it so,” Henry argued in the motion. “Since plaintiff fails to establish the ‘threshold issue’ of remuneration, plaintiff cannot plead the existence of an employer-employee relationship. Without this necessary relationship plaintiff’s claims of hostile work environment, sexual harassment and retaliation cannot stand.”

A year to the day after Fox News fired him over sexual harassment allegations that form the basis of a civil suit against him, Henry brought a federal complaint in the Southern District of New York against a collection of anonymous Twitter accounts that subject him to continuing personal attacks.

Two days prior to Henry’s defamation suit, the New York City Commission on Human Rights announced that Fox News agreed to pay a record $1 million to settle an investigation into what the agency deemed a “culture of pervasive sexual harassment and retaliation at the network.”

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Categories / Civil Rights, Employment, Entertainment, Media

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