The last 90 days in Hollywood have been a tidal wave of sexual harassment allegations and the firings of abusers. The attention on any liabilities started in earnest earlier this summer when a reality show participant on “Bachelor in Paradise” accused another of sexual assault. Although the investigation was done by one studio (Warner Bros.), it set off a chain reaction where entertainment and production company clients began calling their legal counsels to ask what they needed to do about talent agreements and harassment policies, reported Weintraub Tobin Chediak Coleman Grodin Law Corp’s Scott Hervey at a Hollywood Radio & Television Society’s (HRTS) Unscripted Content Group panel discussion on sexual harassment in production in Los Angeles, Calif. on Monday.
“We always think about company liability or executive liability,” said Joel P. Kelly, principal at Jackson Lewis P.C. “But whereas jurisdictional requirement is five people, for harassment you only have to have one. There is individual liability for harassment whether you have one [allegation] or whether you have thousands.”
In speaking about a hypothetical production company in the process of producing a new show, Hervey noted that it is not just the full-time employees of that production company that the company has to worry about but also everyone from the cast members of the show to vendors and independent contractors. In that hypothetical scenario, if a casting director who was hired as an independent contractor implied he would cast an actor in exchange for sexual favors, the company would be liable for his actions, even with that independent contractor status.
“You can require an electrician that you bring on to prove they’re competent for the job, so I don’t know why we wouldn’t want to make sure [people] aren’t offenders,” Kelly said.
Marjorie Williams, Endemol Shine North America’s vice president of business legal affairs, stressed that while it wasn’t strictly about sexual harassment training but included general safety training, too, that education is key. “We make sure we try to have HR on set or some training on the front-end. Our legal department will also be involved, and the thing we try to underscore is communication,” Williams said. “You may have crew that comes on at any point in the production cycle, so it’s equally important to have an ongoing dialogue.”
In order for this moment in Hollywood history to make a true tide turn in behavior, though, there need to be adjustments to policies and practices beyond having everyone sit through a short video or meeting — especially considering many of the highest level individuals “are not in those sessions,” per Kelly.
“One of the effective best practices that I can speak to is background checks,” Williams said. “Background checks are some of the best ways to have some kind of insight into who you’re putting in a room and what [might] come out of it.”
Williams acknowledged the importance of evaluating shows on a case-by-case basis, but she and Jackson Lewis P.C. principal Talya Z. Friedman both noted that another key factor in developing a sense of comfort and safety for anyone involved, especially on an unscripted show, is to ensure there is a “clear and concise understanding of who they can go to with a complaint.” Friedman stressed the importance that this person should not always be a direct supervisor — in case the direct supervisor is the one allegations are being brought against — while Williams pointed out the responsibility that person then has is to be “responsive right away, not in seven days.”
“I know a lot of us don’t like it [because] it’s expensive, but it’s spending the money now or spending the money later,” Williams continued.
Additionally, Williams said practices should be put in place where victims can come forward anonymously. In these situations the company would still be able to see, by the number of people who named the same individual and reported the same circumstances, what kind of a cultural issue there is within the organization and address the issue through the “resonable person” standards.
“There’s not one catch-all or smoking gun that has to be found,” Williams said. “There are various degrees of it, and also the power dynamic that comes into play. These may be two consenting adults, but if one is one’s supervisor and one person has the potential to put someone in a film, or if someone can hire — we know there are a lot of independent contractors looking for their next gig. Who the individual is in this alleged consensual relationship is something we really need to take a look at.”
While “mentoring and monitoring” is important, per Kelly, so too is getting a crisis management team in place — because it’s better to get ahead of something whenever possible. “They occur as isolated complaints, but if you have rumors, gossip, speculation, it’s time to do an investigation, and the length of the investigation is going to change based on what those accusations are,” he points out.
Kelly believes the key to those teams comes from having people of “different disciplines” on the team, from legal to HR to the occasional outside, objective counsel. “The best response is one that is practiced, and we’ve seen a great response in what’s hit the airwaves and the internet in the last 90 days,” Kelly said.
The most important thing to do once allegations are found to be true and offenders are identified within an organization is to take a step back and examine the culture of the company to see if there are systemic issues to address, though. Kelly noted the importance of not treating them as “isolated incidents” and being “proactive to cut off [additional issues] before they hit the internet” because once the public is made aware of the situation, expectations are different.
“The public has become conditioned,” Kelly says of the last few weeks. “I worry that there’s an expectation when we get into court. If you don’t [fire the person] you’re going to be litigating two issues: the event and the cover-up.”