ILG Alert: Harvey Weinstein, Part II

It all began with the bombshell allegations against Harvey Weinstein, who was fired by the company he founded and expelled from the Academy of Motion Pictures and Sciences almost as soon as the media frenzy began. In the wake of the Weinstein scandal, a spate of news reports followed, each accusing prominent men of sexual misconduct and/or harassment in the workplace.

Within days after these stories became public, the employers of the accused harassers took seemingly immediate action. For example, Andy Dick was fired from the upcoming indie film, “Raising Buchanan” and “Vampire Dad” following allegations of on-set sexual misconduct and harassment publicized by the Hollywood Reporter. Production was suspended “until further notice” in the Netflix Original Series “House of Cards” after the series star, Kevin Spacey, was accused of sexual harassment by Anthony Rapp. Mark Halperin, a senior political analyst for NBC News and MSNBC, “is leaving his role as a contributor until questions around his past conduct are fully understood” after CNN published the accounts of five anonymous women who claim Halperin touched them inappropriately at Halperin’s former employer, ABC.

It is still too early to tell how these recent events may affect less glamourous U.S. workplaces, but their potential impact is potentially far-ranging given the seismic shift in attitudes toward victims of sexual harassment and accused employees and the impact of that shift on potential jurors. Most notably, the recent stories about these ill-behaved media and Hollywood giants represent a change in initial presumptions surrounding victim credibility.

Prior to the revelations about Harvey Weinstein, it was estimated that between 70 to 85% of employees who have experienced harassment did not report it. Reluctance to come forward was and is often based on fear – fear of possible adverse consequences for their own careers and fear that they will not be believed in the face of a high-powered individual who will presumably deny the allegations. But recent events may have dispelled some of these fears, as the women who have come forward in the past month were believed – rather than doubted – from the start.

The social media campaign, #metoo, likely also has empowered more employees who have been the subject of this behavior to come forward. Coming forward still isn’t easy, but employees now may feel cradled by the sense of community created by the seemingly ubiquitous experience of workplace harassment and the feeling that their voices are being heard.

As Sari Kamin, one of the dozens of women who claimed they were harassed by Hollywood director James Toback, said, “Listening to women come out from the Harvey Weinstein fallout, that certainly empowered me … It made me think: Well, if they can come forward maybe so can I. More than anything, what made me want to come forward is: It felt like finally, people were listening … There were consequences. It told me not only that people were listening but that they wanted to do something – that they want to stand up and say: ‘No more.’”

If statements like this are any indication, men and women experiencing harassment may be more willing to come forward and report perceived harassment. If so, one would expect to see a rise in workplace complaints of sexual harassment in the future.

Not only has there been a shift in attitudes toward the victims of sexual harassment, but there is an apparent shift in attitudes toward the accused. Indeed, the employers’ responses in the face of these scandals – to immediately cut ties with the harasser – mark a departure from the reactions of other highly-publicized employers when a superstar employee, such as a sales leader, company executive, or well-known surgeon, professor or law partner, is accused of harassment.

In the past, it was not uncommon for an employer to protect the harasser and pay off the employees who were targeted. Indeed, it was just last year that Fox News reportedly spent $20 million to settle Gretchen Carlson’s lawsuit against Roger Ailes. And, after paying a reported $32 million in January 2017 to settle claims against Bill O’Reilly, Fox’s initial reaction was to renew his contract with the network in February 2017. Even after Fox fired O’Reilly after public reports of the sexual harassment settlements triggered an advertiser boycott, O’Reilly was invited to appear on Fox News’ “Hannity” in September 2017 to promote his new book.

It would seem from reports of employers’ reactions in the wake of the Weinstein scandal that those days are gone. Weinstein, Dick, Spacey, and Halperin faced serious employment repercussions for their actions and they were not alone. Vox fired its editorial director when a former employee made allegations of harassment; Defy Media ousted a senior vice president in the face of reports of his sexually harassing conduct; and NPR dismissed its news chief when similar allegations were made, just to name a few. And in each case, their employer took action with apparent rapidity.

In the world of workplace investigations, this incredibly short turn-around between the publication of harassment allegations and employers’ actions is noteworthy and the possible explanations are varied.

  • Had the employer known of the misconduct for some time, sweeping it under the rug until media accounts forced their decision to distance themselves from the accused?
  • Did the accused employee admit his actions to his or her employer?
  • Did the employment contract governing the respondent employment contain broad language permitting dismissal upon the mere leveling of such accusations?
  • Was an investigation conducted in record speed before the employer decided to sever ties with the accused harasser?
  • Did the employer forego conducting a thorough and impartial investigation into the allegations in favor of swift action to stem the tide of public disapproval?
  • Or was the potential financial impact to the media and entertainment companies so great that the threat of a lawsuit from the respondent (in the event accusations later proved unfounded) and the potential adverse impact of a knee-jerk decision to terminate the harasser on any future lawsuit by the victimized employee(s) paled by comparison?

Whatever the reason, there are potential pitfalls for the employer who prematurely takes employment action when confronted with allegations of harassment or sexual misconduct at work. Indeed, an employer, assuming it is not complicit in or previously aware of a history of harassing conduct at the time an employee reports it, should be wary of making any decision affecting the accused person’s employment.

Foregoing an investigation and making an employment decision about the accused based on an allegation of improper conduct alone comes with risks:

  • Exposure to lawsuits for breach of contract: A “superstar” employee may have a contract of employment that clearly sets out when they may, and may not, be terminated without liability to the employer. A knee-jerk termination in the wake of public outcry may violate the terms of such an agreement.
  • Failure to follow due process for public employers: Unlike their private employer brethren, public employees have a property right in their continued employment and must receive due process before being deprived of this right. Termination without any investigation will run afoul of this requirement.
  • Sex Discrimination claims: Discrimination claims could arise if, for example, more men than women are summarily dismissed from their positions due to internal policy decisions to fire or reassign the harasser without investigating the facts.

Therefore, it is prudent for an employer who is faced with an allegation of harassment in the workplace to investigate the allegations and take no employment action against accused employees, other than placing them on unpaid leave while the investigation is conducted, until the investigation is completed.

As a final point, the changing attitudes toward victimized employees and accused harassers potentially heighten the stakes for any employer who faces litigation concerning harassment in the workplace. Several of the cases highlighted in the media include a common theme: People knew what was going on. They may not have known specifics in every case, but they knew if someone had a reputation as a workplace harasser.

These stories lend themselves to the potential belief that an employer’s own investigation is, if not biased, at least suspect, particularly when the accused is a valued employee in the workplace. While it is too early to tell how recent events might impact jury verdicts and awards in workplace harassment cases, it is more important to ensure that the investigation is thorough and impartial. In some cases, this may mean that the harassment allegations need to be investigated by a neutral third-party, who has no history with the respondent or complainant and who has no interest in the results of the investigation or the continued future employment of the harasser.

Dynamic and powerful leaders and founders of businesses are everywhere. They are not just in Hollywood or national newsrooms. Their influence, coupled with the lack of real oversight in many corporate environments, is a powder keg for employers in the post-Weinstein era. Complainants are being believed, they are coming forward and they are using every tool at their disposal – including loud social media campaigns. This means that conduct that may have been tolerated with gritted teeth, swept under the carpet, or quietly paid off, is going to see the light of day.

One result of the publicity we have seen in the celebrity harasser situations is likely to be an uptick in sexual harassment complaints in this environment. And this may be a good thing for employers, employees and the workplace in the long run:

. . . if employees are filing complaints of harassment, that means the employees have faith in the system. Thus, using the metric of the number of complaints must be nuanced. Positive organizational change can be reflected in an initial increase of complaints, followed by a decrease in complaints and information about the lack of harassment derived from climate surveys.

Increased complaints can mean that employers are finally feeling safe in raising concerns. Sometimes positive change can feel painful.

We want to make sure that you (and your clients) are prepared for harassment allegations in the post-Weinstein world. Watch for an upcoming lunch and learn where we will bring you experts on both sides of the aisle in a bipartisan presentation on what the Weinstein phenomenon will mean for businesses and the employees who make them run.

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