On October 5, decades of allegations of sexual harassment against producer Harvey Weinstein.
In the ninety days since, not a day has gone by without more stories of sexual harassment and assault within Hollywood (and beyond), reopening our eyes to a sweeping societal problem.
Earlier this week, Hollywood Radio & TV Society’s (HRTS) Unscripted Content Group held a panel to address these issues from a slightly different angle.
Moderated by Scott Hervey, shareholder, Weintraub Tobin Chediak Coleman Grodin Law Corporation, the evening focused on how to prevent and address sexual harassment in film and TV production from a lawyer’s perspective.
As has become abundantly clear, the problems start at the top.
“Too many companies lack clear policies,” said Marjorie Williams, vice president, business & legal affairs, Endemol Shine North America. Endemol Shine is one of the world’s largest media companies and a dominant player in the unscripted space.
The policy must be in writing, and indicate who’s protected, and feature a non-retaliation clause, or else it’s useless.
“The other end of that is informing employees on what to do if they see something. You don’t have to be the victim; you should be familiar with reporting procedures,” said Williams.
Reporting procedures within the company are hugely important—and every company needs a point of contact, someone anyone in production can go to with a complaint.
“This should be crystal clear, not buried in the paperwork,” said Talya Z. Friedman, Principal, Jackson Lewis P.C., a firm that has specialized in sexual harassment cases for decades.
But the panel stressed that every company needs someone else to report to other than a supervisor, for obvious reasons. The group recommended a 3rd party or an anonymous hotline, a practice that’s been adopted by the military.
“It’s an avenue most people feel comfortable with and will flag repeat offenders in quick order,” said Friedman.
It can also quickly establish a pattern or culture of behavior in a workplace.
What has also been lacking is accountability at all positions. A production company needs to treat all of their employees the same. That means not just rank and file employees need sexual harassment training. Everyone from executives to independent contractors must know the policy in place, and the legal department needs to be involved from the beginning.
By their nature, productions are run and gun—moving as fast as humanly possible to finish in time. This has only exacerbated the problems. Companies must take time to have an all-hands meeting to go over best practices and make sure everyone’s aware of them.
“Cases arise when failing to take that time,” said Williams.
But a one-time meeting is not enough.
“It can’t just be on the front end. It’s important to keep that dialogue going,” said Williams.
In addition to keeping the company policy fresh in everyone’s minds, many employees or cast members join a production when it’s well underway, and have missed that upfront policy meeting.
“They too need to have information and hold consistent with existing standards,” Williams said.
Many production companies aren’t large enough to have the type of infrastructure necessary. In these cases, “it’s perfectly logical and reasonable to reach out to the network and have synergy between those resources,” said Williams.
The unscripted space is certainly unique in terms of the environment its participants will face, as many reality shows are made (and popular) precisely because they are salacious.
It puts production companies in a precarious position when it comes to establishing preventative measures and in casting decisions. But regardless of the show’s content, participants must know what environment they could or could not be in—and each show should be evaluated on a case by case basis depending on its content.
To screen talent for casting purposes, the favored precaution are background checks.
“Companies don’t like spending money on background checks,” said Joel P. Kelly, Principal, Jackson Lewis P.C., who has been working on sexual harassment cases since the 80s. “You have to weigh the cost now…or later.”
Background checks give insight into the type of people in a room, and could prove to become the norm for prevention.
Production may take it one step further, with psych exams. According to Williams, this is helpful given that many reality shows separate contestants from their family, enter in coed living situations, or engage in typecasting stereotypes to create certain dynamics.
The goal is to get ahead of issues, be as candid as possible and feel out a participant’s ability to cope with a show’s unique circumstances.
These prevention measures are important, but it won’t matter if a company isn’t ready to respond when a complaint is made. Many companies have received criticism for their handling of situations, and much of that can be attributed to a lack of preparation.
“It’s important to set up crisis management tomorrow. There’s no better time to deal with a crisis than before it happens,” said Kelly. “The team needs people from different disciplines on that team—legal, HR, corporate business, or outside counsel depending on the capabilities in-house.”
A company’s response is critical—and not just to employees and what they think of you.
“If it’s not effective, it affects how you’re perceived by the outside, or investors. We’ve seen the boycott of products,” said Kelly.
Once you’ve established a team and a lead investigator, a prompt response is essential.
“The best response is one that’s practiced,” Kelly said. “Denial is never effective. ‘That can never happen in this company’ is never effective.”
“Too many times, companies treat complaints as isolated complaints. They may very well be, but there must be an investigation,” said Hervey.
“The response should not just be to the plaintiff or claimant,” said Kelly. “There could be systemic issues, other cases you’re worried about.”
Companies also need to be aware of the evidence needed in an investigation.
“Most investigations fail because they’re looking for a smoking gun or an admission, as if it’s criminal court,” said Kelly.
That’s not necessary—all a company has to prove is the existence of sexual harassment in the workplace to a reasonable person’s standard.
But, as we’ve seen, a good response isn’t enough. Companies could face claim after claim unless you change its cultural mindset.
One way to combat that is zero tolerance.
“You will act appropriately, or else,” said Hervey. “Make clear there are serious consequences to bad action. Maybe there’s not enough information out about the potential parade of liability if you act outside the norm of reasonable behavior. You’ll be sued millions of dollars.”
Another is to make clear that this is everyone’s problem, not just the accused and the accuser.
“All employees have a role play,” said Friedman. “Failed gatekeepers are complicit if they stay silent and look the other way.”
It all starts with each other.
“It’s why we’re all here, being in the room, having this conversation. We’re getting more people aware of the fact that, yes, it may not just be a one-off situation,” said Williams. “Individuals need to understand that it’s subjective. Just because you as this demographic don’t believe that behavior rises to the level of reporting, there are other groups of people that will say that’s harassing behavior to them.”
“It’s critical to change the culture. If you have females in high positions, position of power, then they can implement policies from top to bottom,” said Friedman. “It’s a good start.”
That’s just it—a start, and what’s clear is that we all have to continue to talk, to continue to have difficult conversations, if we want to make a difference.
[From left to right: Scott Hervey, Marjorie Williams, Talya Z. Friedman and Joel P. Kelly. All images courtesy of Chyna Photography for HRTS]