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In a court filing on Thursday, Fox News says that Julie Roginsky, a political consultant and cable news commentator, is not entitled to recover punitive damages because of its nondiscrimination, anti-harassment and nonretaliation policies in place when Roginsky was allegedly sexually harassed by the late Roger Ailes.
Roginsky sued the network, Ailes and Bill Shine in April, alleging her promotion to a regular spot co-hosting The Five was “contingent upon having a sexual relationship with Ailes,” and that when she refused, she didn’t get the position.
Fox News has now filed an answer, which pretty much denies all allegations, although the network does admit that Shine once mentioned a documentary on the band The Eagles to Roginsky. (She claims that Shine compared the coming together of Glenn Frey, Linda Ronstadt and Jackson Browne to the coming together of Bill O’Reilly, Sean Hannity, Ailes and Shine.)
The cable news network also sets forth various affirmative defenses.
One affirmative defense pertains to the policies in place, which didn’t stop Gretchen Carlson and others from complaining about harassment. (Roginsky is represented by the same lawyers who handled Carlson’s lawsuit.) Another is that “at all relevant times, Fox News exercised reasonable care to prevent and correct promptly any harassing, discriminatory, or retaliatory behavior” and that Roginsky “unreasonably failed to take advantage of such preventive and/or reporting and corrective measures or to avoid harm otherwise.”
The network asserts that Roginsky deserved what she got.
“To the extent that Plaintiff suffered damages as alleged (which Defendants deny), such alleged damages were not caused or contributed to by any actions attributable to Defendants, but rather by Plaintiff’s own actions or the actions of others over whom Defendants exercised no control,” states the answer.
Although the above gets the headline treatment, the lawsuit could come down to another affirmative defense — whether there was, as Fox News posits, “legitimate, non-discriminatory and non-retaliatory business reasons” for Roginsky’s placement on the network. That was a key issue a few years back when the EEOC took on Fox News over allegedly discriminatory treatment.
Equally notable about Fox News’ response is something that’s absent. There appears to be no contention that this dispute belongs in arbitration, which is something that has tripped up Andrea Tantaros in her own legal bid.
Roginsky may have had a contract, but according to Fox News, she was an independent contractor.
Represented by Dechert attorneys Linda Goldstein and Andrew Levander, Fox News states in court papers that Roginsky’s claims “are precluded to the extent she performed services in the capacity of an independent contractor and not an employee.”
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