Diversity Insight

Cure and punishment

by Mark I. Schickman

In all of the attention recently given to Harvey Weinstein and his ilk, the focus has been on personalities and far too little of it on the systemic problem of ubiquitous sexual harassment. The discussion has been centered on punishment, with far too little said about the cure.  Stop Sexual Harassment red stop sign held by a female

Weinstein himself presents a plain and straightforward case of sexual harassment—a double dose of quid pro quo and hostile environment harassment directed against people who work for him. Miramax claims “shock and . . . utter surprise” at the sexual harassment allegations against him—hard enough to believe. But the legal test is whether Miramax knew or should have known of sexual harassment in its workplace, and it loses under that test. As serious an individual issue as this is for Weinstein, it’s also a bigger failing for the corporate employer that let it happen.

Among the many employment violations implicated by Weinstein, special opprobrium goes to his use of low-level assistants to book his assignations and to remain briefly present as “beards” to make his victims comfortable. Those subordinate employees were both victims and perpetrators; they should never have been put in that position.

If Weinstein’s conduct is easy to recognize as workplace harassment, the widely reported fear of reprisal that kept victims silent is plainly illegal retaliation. Weinstein claims that he never retaliated against anyone, but even if true, that’s almost beside the point. Allowing a culture of fear in itself violates employment harassment laws. Antidiscrimination policies are meaningless if employees are afraid to invoke them. That, of course, is the really new thing over the preceding weeks—an atmosphere that encourages victims to speak out in numbers that can’t be suppressed. How long will that last?

This issue arises in Hollywood, but it’s a common tale in every industry, wherever there is a disparity of power. A local manager who assigns two women, one to the day shift so she can see her kids at night and the other to a swing shift that gets her home long after her children are asleep, may have more power over his employees’ lives than Weinstein had over his—and can be just as ruthless as demanding sex to sway the decision. Long after the public forgets about glamorous players under the Hollywood sign, battling harassment will remain a constant on our HR agenda.

The illegal, the unsavory, and workplace harassment

There are two aspects of sexual harassment that are in danger of becoming confused in the current public clamor. First, most of what we’re hearing about is assault and battery, not just sexual harassment. Standing naked or masturbating in front of a person, grabbing or cornering her in a room so she can’t get away from unwelcome sex, licking her face—all of those are sexual assaults. We shouldn’t conflate sexual assault and sexual harassment, and we need to train about the conduct short of assault that constitutes sexual harassment.

Second, recall that the definition of proper behavior changes depending on whether you’re in the workplace or outside of it. Weinstein’s high-profile attacks have a work connection that makes them unlawful under the discrimination laws. Andy Dick repeatedly propositioning fellow cast members on a movie set can be workplace harassment. But as the conversation expands to sexual advances directed to strangers in bars or colleagues at social events, the rules are different—perhaps gross, but not workplace harassment. We need to keep that distinction clear.

Workplace harassment is a serious problem that, 50 years after the passage of Title VII, we are still unable to eradicate. That is a hard enough problem, and the current public attention, if sustained, may help solve it. The larger issues of domestic, sexual, and dating violence are different problems unresolved throughout recorded history. Blurring those distinctions makes them each more difficult to address and resolve. Once the Hollywood klieg lights disappear, perpetrators recede into the shadows, and we continue our daily task of preventing and remedying workplace harassment.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. He may be contacted at schickman@freelandlaw.com.