Ms. Bernstein’s lawyers, Neil Mullin and Nancy Erika Smith, have been vocal critics of the use of nondisclosure agreements and nondisparagement clauses to silence victims of harassment. They represented the former Fox News host Gretchen Carlson in her July 2016 suit claiming she was harassed by the network’s founding chairman, Roger Ailes. In the wake of the lawsuit, issues of sexual harassment at Fox News burst into public view.
“Knowing Ms. Bernstein and Mr. O’Reilly’s other victims are afraid to speak out because he and Fox forced them to sign nondisclosure agreements, O’Reilly and Fox have made false and disparaging claims,” Mr. Mullin said in a statement. “They should release all victims from their NDAs and let the truth out. It is cowardly to publicly attack these women knowing they have been subjected to contractual provisions requiring absolute silence.”
Representatives for Fox News and Mr. O’Reilly could not immediately be reached for comment.
Ms. Bernstein, in her lawsuit, said that she had reached a settlement with Fox News and Mr. O’Reilly in July 2002 after she made repeated complaints about his behavior to the network’s human resources department and other executives. The agreement included a confidentiality agreement, which barred both sides from talking about the dispute, as well as a nondisparagement clause.
The New York Times reported on Ms. Bernstein’s settlement in April as part of an investigation that exposed how the network had stood by Mr. O’Reilly as he faced a series of harassment allegations. The Times reported that the network was aware of complaints involving Mr. O’Reilly since at least 2002, when, current and former employees who witnessed the incident said, he stormed into the newsroom and screamed at Ms. Bernstein. Ms. Bernstein soon left the network. (Her allegations did not include sexual harassment.)
The exact amount of Ms. Bernstein’s settlement was not known, but it was far less than the five other publicly known settlements involving Mr. O’Reilly. The six settlements have totaled about $45 million, including one for $32 million.
In her suit, Ms. Bernstein said she was not the source of the information printed in the Times article.
Ms. Bernstein claims that statements made by Mr. O’Reilly and Fox News in response to the article disparaged and defamed her and violated the confidentiality clause of the settlement, which required that if asked about the dispute, the parties could respond by stating, “The matter has been resolved (or settled).”
“O’Reilly portrayed himself as a ‘target’ and claimed that complaints against him are extortionate,” Ms. Bernstein’s lawsuit said. “This is false. In fact, he is a serial abuser and Ms. Bernstein’s complaints about him were far from extortionate.”
Ms. Bernstein said Fox News had made a “deliberately misleading” statement by stating that no current or former Fox News employee ever used a hotline to report complaints about Mr. O’Reilly. She said that there was no hotline at Fox News during her employment and that she had repeatedly complained to the human resources department at Fox News, as well as other executives, about Mr. O’Reilly’s behavior.
“This cynical falsehood about a nonexistent hotline was made to bolster O’Reilly’s claim that the women who received settlements must have fabricated their claims or they would have complained,” Ms. Smith said in a statement. “But Ms. Bernstein did complain. There is ample evidence that Fox News, with the complicity of top executives, enabled the abuse of women for many years, then silenced them nondisclosure agreements and nondisparagement clauses.”
In the suit, Ms. Bernstein said she had suffered reputational harm, emotional distress, physical sickness and loss of income as a result of the statements made by Mr. O’Reilly and Fox News.
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