Sexual Harassment: No Surprises in Harvey Weinstein Affair

The public is currently fixated on our business, sexual harassment in employment. Taking center stage is Harvey Weinstein, whose case is straightforward quid pro quo sexual harassment—a powerful employer expecting sex from women he promises to promote. Is that news in the film industry? Hardly.harassment

In 1931, Merriam-Webster’s Collegiate Dictionary first defined “casting couch” to mean “the practice of abusing one’s power to obtain sexual partners.” I like the way actress Mayim Bialik put it: “We live in a society that has treated women as disposable playmates for far longer than Mr. Weinstein has been meeting ingénues in luxury hotel rooms.”

Although Weinstein didn’t invent the term “casting couch,” he notoriously practiced it for 30 years. It was an open secret in Hollywood and his company. His employees widely report their facilitation of his liaisons, often attending at the start to make victims comfortable before leaving them alone with him. Employees describe an HR department that discouraged and ignored harassment reports.

By 2012, Weinstein’s unwanted sexual advances were a repeated joke on Tina Fey’s NBC sitcom 30 Rock. At the 2013 Academy Awards, host Seth MacFarlane told best supporting actress nominees, “Congratulations, you five ladies no longer have to pretend to be attracted to Harvey Weinstein.” He tweeted that the joke “came from a place of loathing and anger” over a 2011 episode in which Weinstein tried to get a naked massage from actress Jessica Barth. Seth, was joking about your friend being harassed the best you could do?

This summer, the New York Times obtained proof that Weinstein settled several sexual harassment claims against him and reported numerous other charges ranging from blocking, to unwanted touching, to forced oral sex. That report and an expansive New Yorker story emboldened other women, including megastars Angelina Jolie and Gwyneth Paltrow, to share their accusations.

Many of the stories are similar: A business meeting is moved from a public place to Weinstein’s office or hotel room. He excuses himself to go to the bathroom, returns either naked or in a robe, and asks for a massage. Some women fled, some succumbed. All feared that Weinstein was too powerful a figure in Hollywood to publicly challenge—until now. The reports have proven to be the tipping point in Weinstein’s career.

Weinstein trotted out a four-star defense, apologizing to people he hurt and seeking a leave of absence to obtain professional help, while vehemently denying all charges of retaliation or nonconsensual sex. He hired liberal power lawyers Lisa Bloom and Lanny Davis to advise and speak for him. But as the charges mounted, Bloom and Davis both abandoned ship, and The Weinstein Company’s board of directors, led by his brother Bob, fired him. His wife left him. Liberal organizations and politicians, including Hillary Clinton and Barack Obama, vowed to donate his contributions to charity.

In its termination notice to Weinstein, The Weinstein Company asserted “shock [and] . . . utter surprise” over the allegations. Really? Nobody on the board watches the Academy Awards, owns a TV, or talks to employees? Like the NFL claiming ignorance of homophobic locker rooms or the NBA’s feigned shock over racist comments by team owners, the denial reeks of disingenuousness. It’s challenged both by logic and by employees who describe an atmosphere of complicity with Weinstein. HR and company executives didn’t do their jobs.

Weinstein is not alone on the hot seat. Following the charges against him, Amazon suspended its studio head, Roy Price, amid accusations that he ignored actress Rose McGowan’s rape complaints against Weinstein and propositioned Amazon film producer Isa Hacket. Thousands of movie and TV executives are now walking on eggshells in fear for their jobs.

Is zero tolerance of sexual predators a lasting societal value or a blip on the screen? It requires more than a one-time fix to end this pervasive conduct. For 50 years, the law has banned workplace harassment.

We have worked together to prohibit, train against, and remedy such conduct, making major dents in the practice but not eliminating it. We find sexually harassing work cultures in every state and every size and segment of the economy. A fickle public may soon turn to the next popular cause while HR professionals keep working on an ongoing issue that comes as a surprise to none of us.

Mark I. Schickman, an editor of California Employment Law Letter, can be contacted at schickman@freelandlaw.com.