Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—2d Cir.: Fox producer who alleged she was harassed, raped, by correspondent can’t revive claims, (Apr 27, 2026)

By Kathleen Kapusta, J.D.

The former Fox producer sued Fox and a correspondent alleging the correspondent sexually harassed and raped her.

Affirming summary judgment to Fox News on the claims of a former producer who alleged she was sexually harassed and raped by a Fox correspondent and that Fox News was liable under the NYSHRL and NYCHRL for that conduct, the Second Circuit, in an unpublished opinion, found the district court did not err in declining to evaluate her argument Fox was liable because the correspondent exercised managerial or supervisory responsibility. Nor did the court below err in finding the producer failed to show Fox knew about the correspondent’s conduct toward her and failed to take immediate or appropriate action (Eckhart v. Fox News Network, LLC, No. 25-1538 (2d Cir. Apr. 24, 2026, unpublished)).

The producer alleged that while working at Fox, the correspondent pursued her, sent her unsolicited and inappropriate text messages, and manipulated her into having a sexual and often violent relationship with him. In February 2017, she asserted, he lured her to a hotel room under the guise of giving her career advice but instead he handcuffed and raped her.

She sued Fox under New York City Human Rights Law (NYCHRL) and New York State Human Rights Law (NYSHRL) alleging it knew of and facilitated his misconduct and retaliated against her when she sought to hold them both accountable. The district court granted summary judgment to Fox against her claims.

Managerial/supervisory responsibility. On appeal, the Second Circuit first determined that the district court did not err when it declined to evaluate the producer’s summary judgment argument that Fox was liable because the correspondent “exercised managerial or supervisory responsibility,” one of the three theories of liability under the NYCHRL. At the motion to dismiss stage, Fox argued that it could not be held liable because the correspondent did not supervise the producer.

In dismissing the producer’s claim under this theory, the district court held as a matter of law that an employer may be liable under the NYCHRL for harassment by a manager or supervisor if the individual “exercised managerial or supervisory responsibility over the [complainant]” and that the producer’s pleadings showed the correspondent was not her manager or supervisor. Accordingly, the court found that she could not proceed under the “managerial or supervisory responsibility” theory of liability and that Fox could be liable for his conduct only if it knew or should have known about the alleged harassment.

New theory. The producer did not challenge this dismissal, move for reconsideration, or seek leave to amend her complaint to allege additional acts in support of this theory. Instead, the court observed, she argued for the first time in opposing Fox’s motion for summary judgment that the correspondent could be liable under the NYCHRL if he exercised managerial or supervisory authority over anyone. The district court then refused to consider this new theory, implicating that the producer had forfeited this argument by failing to assert it. Agreeing, the appeals court found the district court did not exceed its discretion in declining to consider the producer’s new theory.

Discretion. The employee next argued that the district court misunderstood the NYCHRL, which creates strict liability for employers based on harassment by any employee with “managerial or supervisory responsibility” over any other employee. Because the court’s waiver and forfeiture doctrine is entirely prudential, she asked the appeals court to “exercise this discretion to consider [this] otherwise forfeited argument.”

Declining to do so, the court noted that, before the parties completed discovery, the producer did not argue that Fox was liable for the correspondent’s misconduct on the ground that he exercised “managerial or supervisory responsibility” over Fox employees other than her and the argument was not addressed in the district court’s summary judgment ruling. Thus, the court observed, it could not be certain that the facts surrounding his authority over others at Fox were fully developed in discovery and presented in the summary judgment record. As a result, it refused to exercise its discretion to address the producer’s otherwise forfeited argument that an employer is strictly liable under the NYCHRL for harassment by any employee who exercises “‘managerial or supervisory responsibility,’ regardless of whether the employee exercises such authority over the complainant.”

Knew or should have known. As to the district court’s grant of summary judgment on the producer’s claim Fox knew or should have known about the correspondent’s conduct toward her before he raped her in February 2017, the court found she failed to show Fox knew of his conduct towards her and failed to take immediate and appropriate corrective action. She never told anyone at Fox about any of her sexual encounters with him while she worked there and he never told anyone at Fox about their encounters until he was interviewed after she filed her sexual harassment complaint.

Fox, said the court, did not learn about his alleged conduct toward the producer until after her termination when her counsel informed it of her allegations. Fox immediately hired outside counsel to investigate; outside counsel interviewed the correspondent; less than a week later, outside counsel reported to Fox that the producer and correspondent had sexual contact at Fox Headquarters; and Fox fired him the next day.

Consensual affair. Nor, said the court, did the producer show that Fox should have known about his harassing conduct towards her. While it later learned that he had extramarital affairs and workplace conduct toward women, the only fact known to Fox prior to the February 2017 rape was that he had a consensual extramarital affair with a “stripper in Las Vegas.” And when Fox learned about that, it took him off the air for several months, reduced his annual pay, removed him from his Chief White House Correspondent role, and, while suspended, he went to a sexual rehabilitation therapy and treatment program suggested by Fox.

While the producer argued that Fox must have known about these various other instances of his improper sexual workplace conduct because it was “implausible that Fox News sent [him] to sex addiction therapy on the basis of a single consensual affair,” that argument, said the court, “rests on impermissible speculation rather than permissible inferences.”

Accordingly, the court affirmed summary judgment against the producer’s NYCHRL claims.

NYSHRL claims. Affirming summary judgment against her NYSHRL claims as well, the court found she failed to adduce evidence showing that Fox knew of his conduct while it was ongoing and the evidence showed that Fox acted once it learned of her allegations by terminating him.

The case is No. 25-1538.

Judge: Per Curiam.

Attorneys: Michael J. Willemin (Wigdor) for Jennifer Eckhart. Rachel S. Fischer (Proskauer Rose) for Fox News Networks, LLC

Companies: Fox News Network, LLC; Fox News

Cases: SexualHarassment SexDiscrimination Discrimination CoverageLiability StateLawClaims NewYorkNews