Entertainment attorneys gathered at the Beverly Wilshire Hotel tonight for a Hollywood Radio & Television Society (HRTS)-hosted panel discussion on “How to Prevent Sexual Harassment in Production.” But the subtext was preventing and minimizing corporate liability in the event of lawsuits.
“We deal with these kind of sexual harassment cases day in and day out,” said panelist Talya Friedman, a principal at the Jackson Lewis law firm.
Her colleague, attorney Joel P. Kelly, did most of the talking, however, and began the evening by proclaiming “I am not a sexual harasser,” before telling a story about a sexual harassment case he worked on in the garment industry back in 1982. In those days, he said, and right on up until the Harvey Weinstein story broke, nearly all sexual harassment cases were of the hostile work environment variety, not the kind of out-and-out assault that is so often now being reported.
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“I haven’t seen anything like what we’ve seen in the last 90 days” – about which, he said, “I don’t have any particular insights.” He was apparently only kidding about that, however, as he is one of the town’s leading experts on the law.
Later, when commenting on his ability to rattle off section numbers of the Fair Employment Housing Act, he explained that he’s “anally retentive” – which in some workplaces might have gotten him written up. But not here. It wasn’t sexual or harassing — just a bit tone deaf and perhaps event-inappropriate.
Moderator Scott Hervey asked first-rate questions but focused mostly on what companies can do to keep from being sued – or at least, prevailing, if sued. And all the panelists agreed that effective, well-communicated policies are the best way to prevent sexual harassment in the first place.
Some companies, however, seem to think they can limit their liability by declaring their workers as “independent contractors.”
“We can paper this so that the person looks like an IC (independent contractor),” Kelly said, “but that doesn’t immunize you if they have ready-contact with your W-2s (employees).”
This practice, which many believe is widely employed as a ruse to evade a wide range of responsibilities employers have to their workers, also raises legal issues about anti-sexual harassment training. Many companies have, or are rushing to, put these programs in place, but if ICs are enrolled, Kelly said it show’s “supervision” by the production company, thus blowing its cover story of them being “independent contractors” and exposing them to an investigation by the State Labor Commission. It’s a practice that many workers in the reality and low-budget film and TV industry says is “rampant.”
Every panelist agreed that an effective, written policy should be made known to all employees and “independent contractors” alike.
“Too many companies lack clear policies,” said Marjorie Williams, VP business and legal affairs at Endemol Shine North America, a leader in the reality TV field, which has had its own harassment problems on shows that put a lot of young people and alcohol together in small places.
“And it should be crystal clear,” Friedman said, that every complaint will be investigated and that there will be no retaliation for those reporting sexual harassment. She also recommends that companies have an anonymous telephone hotline.
Calls to such hotlines, Kelly noted, often show a pattern of offensive behavior, and even without physical evidence, can be sufficient to justify terminate. A confession or a “smoking gun” are rare in most of these cases, he said. “If you have sufficient evidence, that’s enough.”
They all agreed that new vigilance is needed in this new era.
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