Harvey Weinstein: beauty and the beastly mogul

by FordHarrison
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Over the last week, the fallout from a New York Times article regarding Harvey Weinstein has been swift and significant.  On October 5, 2017, The Times published an explosive story about Hollywood producer and media mogul Weinstein’s alleged sexual harassment spanning decades.  More and more women have been coming forward since the story broke to accuse Weinstein of unwelcome sexual advances and sexual assault during his time at Miramax and the Weinstein Company.  The Times quoted Weinstein as stating, “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it.  Though I’m trying to do better, I know that I have a long way to go.”

According to The Times, Weinstein has reached settlements with at least eight women over the years and his former attorney, Lisa Bloom, has described him as “an old dinosaur learning new ways.”  The growing list of allegations stands in stark contrast against Weinstein’s public image as a liberal, humanitarian, and champion of women.  The Times quoted Ashley Judd as saying, “Women have been talking about Harvey amongst ourselves for a long time, and it’s simply beyond time to have the conversation publicly.”

Since the story first broke a week ago, the Weinstein Company has terminated Weinstein’s employment, board members and legal advisors have resigned, and Weinstein’s wife has announced that she is leaving him.  Meanwhile, the accusations have continued to mount.  This week, Gwyneth Paltrow, Angelina Jolie, and Cara Delevingne have come forward with additional allegations of sexual harassment.  The New Yorker also published a story alleging that Weinstein has raped several women over the years.  Weinstein is reportedly entering a treatment program for sex addiction and has denied any accusations of nonconsensual sex.  From former temporary employees to Hollywood A-listers, the accusers’ accounts have a similar narrative: young women hoping to find success in the industry but instead facing unwanted sexual advances from a top power player promoting a culture of fear.  It sounds like a Hollywood film plot in the vein of 9 to 5, but this is far more serious and with real-life consequences.

Title VII is the federal law that prohibits sexual harassment and discrimination in the workplace, though there are many state and local laws prohibiting the same.  In order to maintain a sexual harassment claim, the plaintiff must generally establish that he/she was harassed based on sex, that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment, and that there is some basis for holding the employer liable.  If the harassment is perpetrated by a supervisor but does not culminate in a tangible employment action, a defending employer may avoid liability where it proves that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

Best practices for employers to maintain healthy working environments and prevent harassment and discrimination from invading the workplace include:

- Implementing strong policies prohibiting discrimination, outlining various avenues for employees to complain (taking into account the possibility that complaints may be against the person at the top of the chain of command), and prohibiting retaliation;

- Training employees on the available avenues for complaints;

- Training supervisors and managers on how to respond to a complaint;

- Immediately investigating complaints; and

- Taking prompt corrective action when complaints are substantiated.

The bottom line for employers is that they must practice commitment, communication, and credibility.  It is the employer’s responsibility to ensure that potential complainants understand that they will not be subjected to retaliation, that the complaints will be taken seriously and investigated appropriately (regardless of the position of the accused harasser), and that they have nothing to fear from utilizing the complaint procedure.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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