United States: Oh Harvey! We'll Need A Memo To The File

Last Updated: February 16 2018
Article by Amy Epstein Gluck

Until last Thursday, the name Harvey Weinstein evoked popular culture of the 1990's and 2000's. Weinstein is the producer who gave us beautiful, lyrical films like The English Patient and Chocolat. He made groundbreaking movies like Good Will Hunting, Pulp Fiction (personally, my favorite soundtrack), and Carol, and produced the popular franchises Scream and Scary Movie. Weinstein is beloved for such movies as Shakespeare in Love, Silver Linings Playbook, and my daughters' favorite, Ella Enchanted. To date, the Academy of Motion Picture Arts and Sciences nominated twenty of the films that Weinstein produced or co-produced for Best Picture.

In fact, in 2012, Time Magazine named him one of the 100 Most Influential People in the World. Indeed, Johnny Depp lauded Harvey for his "maverick vision." Weinstein co-founded Miramax Film and then the Weinstein Company, with his brother, once The Walt Disney Company purchased Miramax.

Weinstein has enjoyed enormous success from his work. I, for one, love his movies.

The Allegations

Starting October 5, 2017, Harvey Weinstein will also be known as the person who is the subject of a plethora of past sexual harassment allegations spanning decades and, according to two of his company's officials, the person who has settled, privately, at least eight sexual harassment claims between 1990 and 2015. There do not seem to be any current sexual harassment allegations or claims against Weinstein or The Weinstein Group.

After a detailed investigation documented through interviews, internal documents, and emails, The New York Times reported on Lauren O'Connor's (O'Connor was an assistant to Weinstein) memorandum asserting myriad sexual harassment allegations and incidents as well as other misconduct by Weinstein. Former employees described requests by Weinstein to meet in his hotel room where he would ask for a massage or ask to give a massage, usually while naked or nearly so.

O'Connor describes that Weinstein required her to have casting discussions with aspiring actresses after they had private appointments in his hotel room. They talk about being asked to watch him take a shower or a bath or handle "turn down" service as he got ready for bed. One temporary employee reported that when invited to a hotel, Weinstein offered to "boost her career" if she accepted his sexual advances.

Sounds so Hollywood, you might say, but what does this have to do with employment law, you may ask.

Why, as an Employment Lawyer, I Write About These Issues

After all, I don't work for Variety or In Touch Weekly or even a major newspaper. I'm just a lawyer! Well, many of these allegations of sexual harassment were made by The Weinstein Company's employees or women seeking employment, otherwise known as "job applicants."

Sound familiar? It should! Title VII of the Civil Rights Act of 1964 proscribes harassment of an employee or job applicant because of that person's sex. Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. The harassment crosses over into illegal territory when it is so frequent or severe that it creates a hostile or offensive work environment or results in an adverse employment decision.

As I wrote about previously here, Weinstein's conduct, if true, also looks like "quid pro quo harassment" a/k/a sexual favors—and not simply "misconduct," as his apology labels it (more on that later). A reminder that quid pro quo harassment occurs when a manager, supervisor, or executive (any person with the authority to hire or fire) offers or even hints to provide another employee with a promotion, raise, or even a job or other benefit if that employee will provide some kind of sexual favor. This also occurs when a manager or other authority figure threatens to terminate or take some other adverse action against an employee if the employee does not acquiesce to performing some kind of sexual favor.

Why? Why Didn't All These Women Report Weinstein?

There is a simple, one-word answer: power. As O'Connor wrote in her memo,

I am a 28 year old woman trying to make a living and a career. Harvey Weinstein

is a 64 year old, world famous man and this is his company. The balance of power

is me: 0, Harvey Weinstein: 10.

As employers, we can't put the onus on women to report in order to eliminate sexual harassment in the workplace. We just can't. Women do not generate this behavior but are seen as key to stopping or ameliorating it? No. That doesn't make any sense.

Here, the NY Times reports that dozens of Mr. Weinstein's former and current employees, from assistants to top executives, said they knew of inappropriate conduct while they worked for him, but most did not confront him. And, while allegations came to management's attention through other employees, many claimed they did not report it because there were no witnesses and they feared retaliation by Mr. Weinstein. Others said they felt embarrassed. But most confided in co-workers.

Speaking up could have resulted in job loss, and when you have a job with Harvey Weinstein—where many of his assistants and employees have succeeded in Hollywood—you want to keep it. Former employees said they just got used to it. That's just the way his is. You pay to play.

I don't think so, and I think the company is going to have a hard time extricating itself from liability for this.

Where Was the Board? What about Human Resources?

Once the memo came out in 2015, the Board member who had pushed for a code of conduct prohibiting sexual harassment tried to persuade the others that an outside lawyer should determine whether the allegations were true, but the matter was privately settled with O'Connor and she withdrew her complaint. No investigation ensued—no negative publicity emerged.

It does not look like the Board took any additional action since then.

With this recent exposé, first, The Weinstein Company Board released a statement that it planned to investigate sexual harassment complaints against Weinstein while he took a leave of absence.

Next, one-third of the company's all-male board resigned. The remaining board members who did hire an outside law firm to investigate the allegations and announced that Mr. Weinstein would take an indefinite leave of absence immediately.

Then, Weinstein apologized. He acknowledges that the way he's behaved with colleagues in the past has caused a lot of pain. Then he said, "I so respect all women."

Really? A person who respects women does not treat women like he allegedly did or debase them in the manner set forth in some of these allegations. Over years.

Apparently, the Board did not appreciate Weinstein's apology either, and, finally, last night, the remaining Board members announced that they voted to fire him.

Corrective Action

Did the Weinstein Company take corrective action? I don't know that we have all of the facts yet about who knew what and when. What I can say is that if we (me or any of our employment attorneys at FisherBroyles) had been advising the Board, we would have counseled them extensively about investigation and "corrective action."

In accordance with the EEOC guidelines, after a prompt and thorough investigation, an employer should do whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, may be necessary depending on the severity of the conduct.

What SHOULD An Employer Due When Sexual Harassment Allegations Surface?

That brings me to today's list of steps to take if you, as an employer, receive notice of or a complaint of sexual harassment or a hostile work environment:

  • Investigate the allegations thoroughly. This may mean interviewing employees and former employees.
  • Obtain a neutral third-party entity—yes, a law firm works—to conduct the investigation.
  • Document the investigation extensively.
  • If you find that sexual harassment occurred, take swift corrective action. That may mean suspending or terminating the perpetrator. Once supervisors, HR, or Board members are aware that sexual harassment likely occurred, they are complicit if they fail to act, and the company itself will likely be liable for sexual harassment a la Uber.
  • If you find that it is not likely that sexual harassment occurred, document that too! List all the reasons for your conclusions. Then follow up with the complainant to ensure (s)he understands the results and that you'll continue to monitor the situation carefully. Taking this step minimizes your risk of liability in the event that the employee files a Charge of Discrimination.
  • Maintain and enforce a strong anti-retaliation policy in your workplace. Follow up with a complaining employee that (s)he is not suffering retaliation because (s)he reported sexual harassment. Clarify for your employees that if an employee reports sexual harassment or discrimination, she will not suffer retaliation. This encourages reporting, which is beneficial for your company's workplace morale, attrition levels, and reputation.
  • As my partner Rich Cohen said here, "along with proper training, [have] a top-down culture of zero tolerance...to keep the workplace free from sexual harassment." If an employee knows her claims will be taken seriously and investigated, she is more likely to report any perceived sexual harassment or discrimination, and you can avoid a Charge of Discrimination from the EEOC.

Bonus Takeaway

The above steps are necessary because an employer is automatically liable for harassment by one in Weinstein's position that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If Weinstein's alleged harassment is found to have resulted in a hostile work environment, the company can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

As employers, you need to be smarter than this, no matter the identity of a harasser. Don't tolerate sexual harassment in your workplace, and you are more likely to steer clear of a discrimination charge. This is my "silver linings" playbook.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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