Misconduct in the News: Ed Henry and Fox News

Hello, and welcome back to the Marcus Williams Training Academy podcast. We welcome you whether you are listening or watching the video. Today is another episode or segment that I like to call, "Misconduct in the News," where we take a news story and break it down, talk about maybe what should have happened, what should happen from here, just from the publicly available information. I do not have any special insight to any of these stories, only what is available to everyone in the news.

Today we are going to be talking about Fox News and the recent firing of their anchor, Ed Henry. Now in full disclosure I actually reached out to Henry's attorney and invited him on the show and asked for a statement. I did not receive a response so again, this is going solely on what is publicly available in the news.

So to set the stage a little bit with Fox, they have had a lot of issues in the past. They are particularly sensitive to allegations of sexual misconduct because of what has happened. They previously paid 10 million dollars to settle gender and racial discrimination suits. There was the hollywood movie, "Bombshell," that came out about the treatment of women in Fox News. So they are sensitive to these types of allegations. They want people to believe that they've put them behind them; they've fixed it, they've changed their culture. So any action, any decisions they make, we need to keep that background, that context in mind because that's the lens through which they are making decisions.

Okay, with that said, on Thursday, June 25th, Fox received an allegation from an attorney on behalf of a former employee from years ago (So this is old behavior. The impacted employee, the complainant or victim is no longer with Fox.) alleging willful sexual misconduct. Alright, so they get this allegation Thursday, June 25th. Fox immediately looks for and hires a law firm to conduct the investigation. So again through the lens of what has happened historically, instead of deciding to investigate in-house they still believe that people are not going to trust them to do a good job in-house so they immediately find an outside law firm. That's fine. That's great. It's actually refreshing to see a company that realizes when they need to reach out for help. They are in the news business and clearly don't feel confident in the investigations business so they reached out for help.

By the next Tuesday, so July 1st, Ed Henry was fired.

So on Thursday the 25th allegations are received. He is immediately suspended-immediately. Again, through the lens of what happened before and accusations they did not handle these correctly in the past, they just went ahead and suspended him. In a normal case you probably wouldn't react that quickly in suspending unless there was a lot of evidence or teeth to this accusation because the complainant is no longer there so there's no danger. There's no continued discomfort of having to work together with the respondent. So normally you would wait for your investigation before you make a decision, but a private company can act the way they want to. They decided to suspend him to show that they're taking the allegations seriously. Fine.

I really don't see why that was necessary, but they did, I guess more for PR and to continue to build trust within the organization. And I understand that because trust is important. It's something that I talk about a lot. It's something that's a big part of my training. And when I go in and help companies, it's a big thing that I talk about, is the importance of building and maintaining trust. So that was a trust building move. They did it at the expense of Mr. Henry, but that's fine.

So Tuesday he's fired because Wednesday morning on the morning show on air, his female co-anchor announced that he had been, he's no longer with Fox News. He'd been fired. So Thursday they received the allegation. That essentially gave them Friday and Monday as investigation days and Tuesday even, maybe they took all day and didn't fire until evening. So three business days to do the investigation. It's possible they worked, actually probable they worked over the weekend, so let's say five, a five day investigation.

They didn't release any information with that allegation to the public so what he did wasn't available, only that it was willful sexual misconduct in the workplace. I've conducted hundreds of sexual assault, sexual misconduct investigations. Of course many of them were with law enforcement where I was working to try to reach the beyond a reasonable doubt standard and in private industry you only have to reach the preponderance standard (so just over 50% or is it more likely than not that he did the things he's being accused of). But again just from that I have a hard time believing that they were able to do a thorough investigation in that short time. In fact I can be 100% positive that they did not complete all of the investigative steps that they probably should have. Because they couldn't have.

She no longer works, the complainant no longer works at the-at Fox. They probably should have talked to her. Even though she submitted a statement with the initial complaint, they probably had follow-up questions for her. They would have needed to talk to other witnesses at the time, look through files, talk to people, run down people who are no longer with Fox and get them to agree to talk to them, and then corroborate statements. You just can't do an investigation that quickly. It's impossible to be thorough.

So my assumption, and again assumption, is that there was some sort of "smoking gun" if you will, some sort of solid evidence that showed that he engaged in sexual misconduct, misconduct that was against the Fox News policy. There's a potential that they were very sensitive. Something that maybe before they wouldn't have, that wouldn't have been a firing offense now is because of what had happened with Fox News. But that's their decision to make and that's fine. My argument is that I would bet if I looked at the investigation that it wasn't a complete investigation. They probably dug up enough just enough information to justify firing him and that was that.

I doubt that they gave Mr. Henry the opportunity to really respond to that evidence, to whatever they found because really the only way that you can make a decision that quickly is if there is very clear evidence, like I said, a "smoking gun."

So the other thing about that is that Henry's response through his attorney, looking at, looking at articles from NPR dated July 1st, CNN dated July 1st, and the BBC same date because this was just such a quick story. So Ed Henry's attorney came out and said that quote "Henry is confident that he will be vindicated after a full hearing in an appropriate forum." End quote, So that's interesting. Instead of apologizing or not making a statement at all, his public statement is that he will be vindicated after a full hearing in an appropriate forum.

What does that mean? My guess is a court of law, that there will be a civil suit, that at the time of this statement they were planning on suing Fox in a courtroom where Ed Henry will be able to provide his side of the story. Because the investigation happened so quickly I doubt he ever had the opportunity to share his side of the story or to explain the evidence from his perspective. So if the, if it's such a "smoking gun" and just so clear that he did it, how is he, I mean I can understand a denial, that's just common. But he's straight up saying once we get to an appropriate forum, once we get to a place where it's fair for our side as well, he will be vindicated.

So that's interesting, and it's possible, it's possible that he did it and they have the evidence. In fact, I'm guessing that they probably did find evidence of behavior that they found unacceptable. The issue is going to be, I don't know what his argument is, I guess, (again going just off the news so this is a guess) but my guess is he's going to argue that the behavior was consensual. And that's after I've done hundreds of cases, so that's something that's a very common argument. Yes, it looks bad when you say it's non-consensual, but if it was a consensual relationship maybe it's inappropriate, I shouldn't have done it, but that's not necessarily a firing offense anymore.

So it'll be interesting how that plays out.

So one more thing regarding this is Fox put out an email to their employees and they basically said they retained a law-outside-basically talked about, we received this allegation. We-it was from years ago. We retained a law firm to independently investigate. He was suspended at first and then he was fired because of it. And then they go on to say, "Fox News Media strictly prohibits all forms of sexual harassment, misconduct, and discrimination. We will continue striving to maintain a safe and inclusive workplace for all employees."

So here's an example of a company saying we take this seriously because look how quickly we acted. We jumped on this one so, and then they-even in this letter to employees they go on to say, hey remember how back in the day? They say, "As all of you know, in January 2017 we overhauled our entire Human Resources operation and instituted extensive mandatory annual Inclusion and Harassment Prevention training." So they overhauled their entire HR operation and they're basically saying look, we made these changes that everyone wanted us to make and look how they're being effective. We're actually doing it today. This is all good. This is all something that I would recommend.

It's interesting though that they overhauled their entire human resources operation, yet they still felt that they didn't have the ability to investigate this in-house. That's interesting, right? If they had overhauled the HR, they should be able to come out and say hey look, we-we're doing, we know what we're doing now. We've overhauled it and we now trust our HR people to do the right thing. We give them full autonomy to do the right thing, and so we had HR handle it. Instead they immediately went to an outside law firm.

So that's what we had: allegation, swift action, denial and this statement that we will be vindicated. So then on July 20th, the woman in the allegation filed a civil suit with, along with a co-plaintiff, another woman. And in this civil lawsuit they include, they-she accuses Ed Henry of rape, sexual misconduct, and harassment. So now we're getting a little bit more information beyond just willful sexual misconduct. We're talking rape and the complaint, this is from an NPR piece from July 21st, 2020. So this complaint, the civil complaint, the civil suit "graphically presents multiple allegations of sexual abuse suffered by Jennifer Eckhart, a former associate producer at Fox Business, who said that Henry suggested he could help her advance in her career in exchange for sex."

Okay, so now we're getting a better idea of what the allegations were. And clearly, if true, these- this is sexual misconduct and Fox did the right thing in letting him go. So now we have the name of the former employee which was not released initially. So Eckhart's complaint alleges that Henry quote "Preyed upon, manipulated, and groomed her," end quote, coercing her into sexual intercourse. Now when you are talking about a situation of grooming and coercion, those are difficult cases to prove because ultimately the person agreed to the sexual behavior, but did so because they were groomed and coerced into doing it. So you have to show the non-consent through the coercion and that takes time to do. That takes a lot of investigation and resources to show that the final "consent" to the sex wasn't actually consensual because it's based on this long history of coercion. So again, something you can't do in three days. But again, I don't know what the evidence was or what they had.

Eckhart says that in 2015 Henry forced her to perform oral sex on him at the Fox News building in New York. She also alleges that in 2017 he handcuffed her as part of a quote "violent, painful rape," end quote in a Manhattan hotel room. Okay, very, very serious allegations, not just of sexual misconduct but of criminal behavior. The complaint includes a number of graphic text messages that Henry allegedly sent Eckhart following the 2017 incident. So, following the handcuffed alleged violent painful rape in Manhattan, Ed Henry texted her regarding that incident in a graphic way. So I'm going to assume that the investigators had access to those graphic text messages which they used to so quickly come to a conclusion.

The problem is that Henry's lawyer has characterized the allegations against her client as "fictional," quote, and in a statement said, quote "The MeToo movement has helped to bring to light a number of injustices in our society and everyone that has suffered deserves to be heard. This is not one of those cases. The evidence in this case will demonstrate that Ms. Eckhart initiated and completely encouraged a consensual relationship." Which is exactly what I said earlier, right?

The issue when you're talking about coercion, when you're talking about this, is going to be consent; and it's very difficult to prove consent in three days, in three business days. Ed Henry's lawyer is confident that they can show it was consensual. By that I'm guessing that there aren't any texts where Eckhart says "No," or "Don't," "Please don't do this," "Why did you do that to me?" that kind of thing that would show non-consent. Again, I don't know. I haven't seen them. And of course as his defense attorney she's going to defend him. I totally agree with that.

My point again is that in three business days, or five days, there's no way they could have compiled that. And it's concerning that Ed Henry's lawyer is saying this evidence out there exists that will exonerate him, but Fox didn't have that evidence in their investigatory report when they made the decision. This-they should have had that. As part of a thorough investigation, they should have had that. And Ms. Foti is saying they didn't, they didn't, they don't because that's going to exonerate him. So it's going to be interesting when those text messages come out whether they actually show it was non consensual.

Again, Fox can say, we don't care, having a sexual relationship with a subordinate or with a co-worker, is against our policy. Having a, you know those-sending those kind of graphic texts, participating in that behavior on work time when we're paying you is not acceptable and we're firing you for that. All of that is completely within Fox's rights to do. This isn't a court of law. He's not going to jail. They're just saying are you-based on your behavior are you someone we want to be an employee in our company? And they decided no.

But now it's leading to a civil suit where they are going after damages and money from him so it becomes more important that all of the evidence comes out. So the co-plaintiff was named as Cathy Areu and she was a, she was a Fox News contributor. She alleges in the complaint that Henry sent her a slew of wildly inappropriate sexual images and messages including photographs and video. According to the complaint, Henry also sent numerous texts suggesting that she have sex with him.

So again, in the initial allegations it sounded like it was only from one person, from Eckhart. That's the way it was portrayed. It may have been from both and we have here with the co-plaintiff Areu that they've got sex sexual images and messages including photographs and videos. So if the investigators, if the law firm investigating had access to those, Fox could very easily say those are inappropriate; we expect better from our employees; those are against our policy, and fired him just for that. But the question is was that inappropriate behavior or actual sexual harassment, which is much more serious. What kind of, where does this sexual misconduct lie? So this remains to be seen. We'll see what happens with the lawsuit and where it goes.

That's probably going to take time and I wouldn't be surprised if they actually end up just settling and we'll never know, the public will never see this information because they will just settle. We'll see. We'll see what happens.

But in looking at it from the outside as misconduct in the news, only the information available to me, my concern is the speed of the investigation. Again, put that context in from Fox News of why they would want to take swift action. I understand it. We all get it and frankly I don't blame them for doing that.

But in your organization when you are faced with similar allegations, I would highly suggest that you take the time to do a full and thorough investigation. You can make the decision at any time to suspend the person. They decided to suspend him immediately. You could wait until you get some evidence in but before actually going out and saying this employee has been found to have engaged in willful sexual misconduct and has therefore been fired.

Do a full investigation. Actually take the steps to listen to both sides. Give the respondent (in this case who would have been Ed Henry) give them a chance to actually respond to the allegations, to defend themselves, to provide their side of the story. The last thing that you want in your organization is to feel like you're doing the right thing by acting quickly and firing someone and then finding out later that the allegation wasn't true or that there was more to the story and now you may actually have some liability from the other side. You may be subject to a lawsuit because you reacted hastily or based on bad information. And now you've-you've hurt this person's reputation by saying they're a sexual predator when possibly in fact they weren't.

I'm not saying Ed Henry isn't. It kind of looks like he had engaged in a history, um other employees said that there was a history of him flirting, saying inappropriate things at work, so it sounds like he was a problem overall. Again, I don't know if the specific allegations are true, if it was consensual or not consensual.

My takeaway from this story though is I understand you want to act quickly. You want to look decisive, but I don't see how you could have conducted a thorough investigation in that amount of time. I've done, I've had sexual assault investigations where I had pressure to get them done quickly, and it's impossible to do in three business days. It just is.

All right, so that is my "Misconduct in the News" episode of the Marcus Williams Training Academy. Thank you for listening or watching, whichever medium you're using. Make sure that you subscribe so that you don't miss my next episode. Thanks again.