Forfeiture and Evidence Limits in NYCHRL/NYSHRL Employer Liability for Employee Sexual Misconduct

Commentary on Eckhart v. Fox News Network, LLC, No. 25-1538 (2d Cir. Apr. 24, 2026) (Summary Order).
Important: The court issued a “SUMMARY ORDER,” which “DO[ES] NOT HAVE PRECEDENTIAL EFFECT,” but it is still a useful window into how the Second Circuit applies existing standards to NYCHRL/NYSHRL employer-liability and appellate preservation doctrines.

1. Introduction

Jennifer Eckhart sued Fox News Network, LLC (“Fox”) and Fox correspondent Ed Henry, alleging Henry sexually harassed and raped her and that Fox was legally responsible for Henry’s conduct under the New York City Human Rights Law (“NYCHRL”) and New York State Human Rights Law (“NYSHRL”). This appeal concerned only whether Fox was entitled to summary judgment on Eckhart’s NYCHRL and NYSHRL sexual-harassment theories of employer liability.

The key issues were:

• NYCHRL: Whether Fox could be liable under N.Y.C. Admin. Code § 8-107(13)(b) because (i) Henry “exercised managerial or supervisory responsibility,” or (ii) Fox “knew” or “should have known” of Henry’s alleged discriminatory conduct and failed to respond with required diligence.
• NYSHRL: Whether Fox “encourag[ed], condon[ed], or approv[ed]” Henry’s alleged conduct—i.e., became “a party to it.”
• Procedure: Whether Eckhart forfeited key NYCHRL arguments by not raising them earlier, and whether “law of the case” barred her from reviving a dismissed supervisory-liability theory at summary judgment.

2. Summary of the Opinion

The Second Circuit affirmed the district court’s grant of summary judgment to Fox.

• NYCHRL – supervisory/managerial liability: The court upheld the district court’s refusal to entertain a new, late-raised theory that Fox is strictly liable if Henry had managerial/supervisory authority over any employee (not necessarily Eckhart). That theory was deemed forfeited and, in any event, would have required additional fact-finding not developed in the record.
• NYCHRL – “knew” / “should have known”: Eckhart failed to produce evidence that Fox knew of Henry’s alleged conduct toward her before the alleged February 2017 rape, or that Fox should have known of it. Speculation that Fox must have known more (because it sent Henry to therapy) could not defeat summary judgment.
• NYSHRL: Under the agreed “condoning” standard, Eckhart failed to show Fox had contemporaneous knowledge of the alleged harassment; and the record showed Fox acted after learning of the allegations by terminating Henry.

3. Analysis

A. Precedents Cited and Their Role

• Qorrolli v. Metropolitan Dental Associates, 124 F.4th 115 (2d Cir. 2024) and Garcia v. Hartford Police Department, 706 F.3d 120 (2d Cir. 2013)
  These cases supplied the governing summary-judgment framework: de novo review; summary judgment only if no genuine dispute of material fact; and all ambiguities/inferences drawn against the moving party. The panel used these standards to emphasize that even on plaintiff-favorable inferences, Eckhart’s proof did not reach the threshold required on knowledge/constructive knowledge.
• Bey v. City of New York, 999 F.3d 157 (2d Cir. 2021)
  Cited for the “view the evidence in the light most favorable” principle, paired with an explicit caveat: the appellate posture does not determine “what did or did not transpire,” only whether evidence sufficed to avoid summary judgment.
• Hamilton v. Atlas Turner, Inc., 197 F.3d 58 (2d Cir. 1999)
  Provided the abuse-of-discretion standard for reviewing a district court’s decision to treat an argument as forfeited when raised belatedly (here, a new supervisory-liability construction raised in opposition to summary judgment).
• United States v. Gomez, 877 F.3d 76 (2d Cir. 2017) and Greenidge v. Allstate Insurance Co., 446 F.3d 356 (2d Cir. 2006)
  These authorities framed the panel’s discretion to reach “otherwise forfeited” arguments. The court declined, stressing the exception is typically used when no further fact-finding is needed; here, the record was not clearly developed on Henry’s authority over other employees.
• Gao v. Barr, 968 F.3d 137 (2d Cir. 2020)
  Used for abandonment on appeal: Eckhart sought to relitigate supervisory status based on the summary-judgment record without arguing the earlier pleadings dismissal was legally erroneous; thus, her challenge to that dismissal was treated as abandoned.
• Devilla v. Schriver, 245 F.3d 192 (2d Cir. 2001) and Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245 (2d Cir. 1992)
  These cases supported the district court’s “law of the case” approach and the limited grounds to revisit an earlier ruling (intervening law, new evidence, clear error/manifest injustice). The panel found no abuse of discretion in holding Eckhart could not revive a previously dismissed supervisory-liability theory years later.
• Bogle-Assegai v. Connecticut, 470 F.3d 498 (2d Cir. 2006)
  Applied to narrow the appellate issues: the Second Circuit declined to consider theories (e.g., implications of Henry’s post-assault texts) that were not presented in the summary-judgment briefing below.
• Davis v. Bombardier Transportation Holdings (USA) Inc., 794 F.3d 266 (2d Cir. 2015) and Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919 (2d Cir. 1985)
  These were crucial on evidentiary sufficiency: speculation cannot defeat summary judgment, and inadmissible hearsay cannot be used to create a triable issue absent a showing that admissible evidence will be available at trial.
• State Division of Human Rights ex rel. Greene v. St. Elizabeth's Hospital, 66 N.Y.2d 684 (1985)
  Provided the controlling NYSHRL employer-liability standard: an employer is not liable for an employee’s discriminatory act unless it “encourag[ed], condon[ed], or approv[ed] it,” with “condoning” requiring “knowing, after-the-fact forgiveness or acceptance.”

B. Legal Reasoning

1) NYCHRL: Supervisory/Managerial Liability and Preservation

The court’s NYCHRL discussion is as much procedural as substantive. The opinion traces that the district court earlier dismissed Eckhart’s NYCHRL theory under N.Y.C. Admin. Code § 8-107(13)(b)(1) on the understanding—shared by the parties at that stage—that liability turned on whether Henry “exercised managerial or supervisory responsibility over the [complainant].” That dismissal was not challenged by reconsideration, amendment, or a developed alternative legal theory during discovery.

When Eckhart later argued (at summary judgment) a broader construction—strict liability if Henry supervised anyone—the district court treated its prior dismissal as having resolved the theory and declined to entertain the new construction. The Second Circuit held that was within the court’s discretion (forfeiture) and separately affirmed the refusal to reach the newly raised construction on appeal because deciding it would likely require further fact-finding not clearly developed in the record.

2) NYCHRL: “Knew” / “Should Have Known” Before the Alleged Assault

On actual knowledge under § 8-107(13)(b)(2), the panel emphasized undisputed facts: Eckhart never told Fox about the encounters while employed; Henry did not tell Fox; Fox learned of the allegations only after Eckhart’s termination when her counsel notified Fox; Fox immediately retained outside counsel; and Fox terminated Henry shortly thereafter. That sequence defeated a claim that Fox “knew” and “acquiesced” during the relevant time.

On constructive knowledge under § 8-107(13)(b)(3), Eckhart’s main theory was inferential: because Fox sent Henry to sexual rehabilitation, Fox must have known of other improper conduct. The court rejected this as “impermissible speculation” under Davis v. Bombardier Transportation Holdings (USA) Inc. and noted the absence of non-hearsay evidence that Fox managers had pre-February 2017 information about other workplace misconduct. The only pre-assault fact shown in the record was Fox’s knowledge of a consensual extramarital affair, after which Fox suspended Henry, reduced pay, removed him from a prominent role, and directed treatment—actions inconsistent with indifference but, more importantly for § 8-107(13), not proof that Fox should have known about Eckhart-specific misconduct.

3) NYSHRL: No “Condoning” Without Contemporaneous Knowledge

Applying State Division of Human Rights ex rel. Greene v. St. Elizabeth's Hospital, the court held Eckhart lacked evidence that Fox knew about Henry’s alleged conduct “while it was ongoing,” and thus could not have “encourag[ed], condon[ed], or approv[ed]” it. The record also showed Fox terminated Henry upon learning the allegations, undermining any claim of “knowing, after-the-fact forgiveness or acceptance.”

C. Impact

• Procedural discipline in NYCHRL litigation: The opinion underscores that litigants cannot wait until summary judgment to unveil materially different statutory constructions—especially after an earlier dismissal—without risking forfeiture and “law of the case” barriers.
• Constructive knowledge requires evidence, not narrative plausibility: The panel’s rejection of the “therapy implies prior knowledge” theory reinforces that plaintiffs must connect an employer’s prior awareness to the specific risk or pattern at issue with admissible evidence, not conjecture.
• NYSHRL’s narrower employer-liability channel: By reaffirming the “encouraging, condoning, or approving” standard (as the parties agreed), the decision highlights the continuing practical gap between NYCHRL’s statutory employer-liability framework and NYSHRL’s more restrictive (and knowledge-centered) standard in cases involving misconduct kept secret from the employer.
• Real-world compliance takeaway: The record facts credited by the court—retaining outside counsel, investigating promptly, and terminating an accused employee upon corroborating information—functioned as powerful defenses to employer-liability theories premised on knowledge/acquiescence.

4. Complex Concepts Simplified

• Summary judgment: A case can be decided without trial if, even taking the non-moving party’s evidence as true and drawing reasonable inferences in their favor, no reasonable jury could find for them on a necessary element.
• Forfeiture vs. waiver: “Forfeiture” typically means a party failed to timely raise an argument; appellate courts often decline to consider such arguments, especially if the record would need more factual development.
• Law of the case: Once a court decides an issue in a case, that decision generally governs later stages unless there is new controlling law, new evidence, or clear error/manifest injustice.
• NYCHRL employer liability (N.Y.C. Admin. Code § 8-107(13)(b)): The statute provides specific routes to employer liability for employee misconduct—commonly litigated through whether management knew/should have known and failed to act with appropriate diligence.
• “Should have known” / constructive knowledge: This is not “the employer could have guessed” or “it seems likely.” Courts typically require evidence showing warning signs reached management (or would have through reasonable diligence).
• Speculation vs. reasonable inference: A reasonable inference is a logical conclusion supported by evidence; speculation is a suspicion without evidentiary support. Only the former can defeat summary judgment.
• Hearsay at summary judgment: Courts generally disregard inadmissible hearsay unless the proponent shows it can be presented in admissible form at trial.
• NYSHRL “condoning”: Under the cited New York Court of Appeals standard, employer liability generally requires proof the employer knowingly accepted or forgave the misconduct—making employer knowledge central.

5. Conclusion

The Second Circuit’s affirmance in Eckhart v. Fox News Network, LLC turns on two themes: (1) preservation rules matter—NYCHRL statutory theories and interpretations must be timely and consistently litigated, or they may be forfeited and barred by “law of the case”; and (2) employer liability under both NYCHRL knowledge-based provisions and the NYSHRL “condoning” standard requires admissible evidence of what the employer knew (or should have known) at the relevant time, not post hoc plausibility arguments. Even in the plaintiff-favorable summary-judgment posture, the absence of proof of contemporaneous knowledge and the presence of prompt corrective action upon learning of allegations supported judgment for Fox.