Retaliation in Employment Law: Scottie Nell Hughes vs. Fox News
First, 21st Century Fox reached a $20 million settlement with anchorwoman Gretchen Carlson who alleged that Fox News chairman Roger Ailes sexually harassed her. Next, Fox reached settlements with five women who complained about sexual harassment and inappropriate behavior by Bill O’Reilly, the network’s top-rated host in cable news.
Things continue to get more arduous for the network. On September 18th, 2017, former Fox News guest political commentator Scottie Nell Hughes filed a lawsuit against Fox and Fox Business Network host Charles Payne charging that Payne raped her and that the network then retaliated against her when she and her representatives discussed the allegation with the network’s attorneys.
In her 29-page complaint, Hughes sets out seven causes of action, ranging from defamation to gender discrimination. This presentation will examine and analyze her retaliation claim, and will look at any defenses that Fox may assert.
The complaint provides the seedy details of the relationship between Payne and Hughes. In July 2013, Payne allegedly sexually assaulted Hughes in a New York City hotel room and Hughes alleges that she was pressured into commencing an affair with Payne that would last three years. During this time, Hughes became a highly-sought after conservative commentator on many Fox News programs.
Hughes ended the relationship in late 2016. After ending the relationship, she went from appearing on Fox programs nearly five times per week to only appearing five times in total over a ten-month period.
Hughes also claimed that she had a confidential meeting with Fox’s attorneys, where she discussed the sexual assault. Less than two weeks later, The National Enquirer ran a story on an affair between Hughes and Payne and news outlets across the world picked up the story.
What is needed for a successful retaliation claim?
Federal and state employment laws strive to ensure that workplaces are free of discrimination and to make sure that employees are protected from retaliation if they challenge employers’ illegal conduct. The Supreme Court has enforced these rules to punish retaliatory measures in a long string of cases. 
Hughes alleges a violation of the New York State statute on retaliation, which provides:
It shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article.”
Claims of retaliation under New York law are treated similarly to retaliation claims under federal law, specifically Title VII of the Civil Rights Act of 1964. If the employee files a complaint or communicates with a supervisor or manager about employment discrimination, including harassment, she is protected from retaliation.
Employment law attorney and retaliation expert Robin Shea writes that a fired employee must satisfy three prongs to establish a federal retaliation case. The fired employee must show:
· Involvement in a legally protected activity under Title VII;
· An adverse employment action such as termination or suspension without pay; and
· A causal connection between the legally protected activity and the adverse employment action.
Once an employee satisfies these three elements, the employer must demonstrate a legitimate, non-retaliatory reason for discipling the employee to avoid liability.
Applying the Law to the Facts
Hughes may be able to successfully establish all three elements. First, she can make a claim that she participated in a legally protected activity, which is a broadly defined term. The Equal Employment Opportunity Commission provides numerous examples of “protected activity,” including being a witness in a harassment investigation, refusing to follow orders that would result in discrimination, or requesting accommodation of a disability.
Communicating with a supervisor or manager about employment discrimination, including harassment, is a legally protected activity. Hughes engaged in protected activity when she reported to both the network and its legal counsel the allegations of rape and assault by Payne.
Second, Hughes must present evidence that Fox took an adverse employment action against her because of what she did. In one case, the United States Supreme Court established that adverse actions aren’t limited to employment status changes such as firing, failing to promote or re-assignment. Rather, actions are adverse if a “reasonable employee would have found the alleged retaliatory actions ‘materially adverse’,” even if the retaliation is outside of the employment context.
Here, Hughes can cite several possible instances of adverse actions. The first example of adverse action was the significant decrease in the frequency of her television appearances on Fox. Fox effectively blacklisted her and ignored her inquiries about scheduling appearances on the network.
The second instance of adverse action occurred after Hughes’s manager’s meeting with Fox network attorneys to discuss Payne’s treatment of Hughes. Five hours after the meeting, her manager received a call from a reporter at The National Enquirer seeking comment about her alleged affair and two weeks later, the tabloid published an article on her affair with Payne. Fox attorneys allegedly leaked her name to news outlets, thus tarnishing her reputation. Since the courts have taken such a broad view on what qualifies as “adverse action,” Hughes’s attorney could successfully assert that they satisfy the second prong.
Finally, Hughes must prove a causal connection between her actions discussing sexual harassment and rape by a Fox employee and the adverse actions taken by the network. A plaintiff claiming retaliation can prove causation with direct evidence that the employer knew of the involvement in a protected activity and took adverse action in response or with circumstantial evidence that indicates a connection. Here, Hughes can provide evidence that Fox was on notice about Payne’s treatment of her due to her direct complaints to network officials and her conversations with Fox News attorneys to discuss what had happened to her and the allegations of rape. This all occurred before the adverse actions took place. A jury could reasonably connect Fox’s actions as a response to Hughes’s admissions.
Fox’s chance for successful defense, therefore, may rest on its advancing legitimate, non-retaliatory reasons for its conduct. First, Fox could argue that it curtailed Hughes’s appearances on the network because her services weren’t needed as much after the election as before the election. Second, though she had been in the running for several high-profile positions in the Trump administration, she was not hired for any of these positions. As such, Fox perhaps no longer viewed her as an insider connected to President Trump and so she may not have provided any additional insight to his policies.
Fox can also contend that since Hughes regularly appeared on CNN as a political contributor, Fox network show producers thought that she lost her desire to appear on Fox news as often as she had in the past. Not booking her often could have also been an unintentional oversight and not a malicious attempt to retaliate against her for discussing Payne’s conduct.
Retaliation charges filed with the EEOC have been steadily rising in the last two decades. One EEOC study found that their numbers jumped from 10,499 in 1992 to 23,371 in 2007. Is Hughes a retaliation crusader standing up for women’s rights against a media giant, or a disgruntled employee seeking a publicity stunt? Whatever her motivation, a rocky year for Fox has gotten even more tumultuous.
 Jonathan Shank, “Retaliation in the Wake of Burlington Northern: Making the Case for an Updated Standard for Proving an Adverse Action in Massachusetts Under Chapter 151B,” 41 Suffolk U. L. Rev. 217, (2007).
 Richard Moberly, “The Supreme Court's Antiretaliation Principle,” 61 Case W. Res. 375, (2010).
 NYSHRL § 296
 Bermudez v. City of New York, 783 F. Supp. 2d 560, (2011).
 42 U.S.C. § 2000e-3.
 Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir.1995).
 Moore v. City of Philadelphia, 461 F.3d 331, (2006).
 Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, (2006).
 B. Glenn George, “Revenge,” 83 Tul. L. Rev. 439, (2008).
 Elana Olson, “Beyond the Scope of Employer Liability: Employer Failure to Address Retaliation by Co-Workers After Title VII Protected Activity,” 7 Wm. & Mary J. of Women & L. 239, (2000).
 U.S. Equal Employment Opportunity Comm'n, Charge Statistics FY 1997 Through FY 2007.