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The Academy’s New Code of Conduct Finds Its First Test: President John Bailey

After the drama and mishaps of the past year, the Academy of Motion Picture Arts and Sciences had reason to celebrate a relatively snafu-free Oscar broadcast on March 4.

The afterglow lasted less than two weeks. On March 16, Variety reported that the Academy had received three allegations of sexual harassment against its president, cinematographer John Bailey. The accusations put the Academy back in the spotlight and could become another black eye for the fractious institution. It’s an organization where mistakes — the wrong best picture envelope, say — are instantly magnified and can have disastrous consequences.

At least until last Friday, it appeared that the Academy had handled the #MeToo movement fairly well. It expelled Harvey Weinstein fewer than 10 days after The New York Times reported allegations that he had been sexually harassing actresses and employees for decades. The issue was also addressed gracefully on this year’s Oscar telecast, with a presentation from a trio of Weinstein’s victims: Ashley Judd, Annabella Sciorra and Salma Hayek.

But those were easy calls. The allegations against Bailey may not be so readily addressed, and they could expose unresolved tensions within the Academy’s 7,000-member body over how to deal with the issue of sexual harassment.

Decisions will be forced on the body at every step. For now, Bailey remains in place as president of the board of governors. That has been criticized by some, not least because the board ultimately rules on discipline of its membership.

The Academy has not said whether Bailey would be recused from a vote if it came down to that. Nor has it said whether Carol Littleton, his wife of 46 years and a board member from the editing branch, will have to recuse.

“They need to lead on this,” said Melissa Silverstein, the founder and publisher of Women and Hollywood. “The way they lead on this is to have him take a leave of absence and step down as president of the Academy until the investigation is complete.”

The Academy declined to comment for this story.

Just two months ago, the organization promulgated a new policy to deal with allegations against its members. The policy provides that the Membership and Administration Committee must first review the allegations and, if they are serious enough, solicit a response from the accused. The committee may then opt to do nothing or forward the matter to the full board for consideration of discipline.

The Academy has said that the policy was based on those in place at other institutions, including AFI, Film Independent, UCLA and the Television Academy. But it has never been used at the film academy. The allegations against Bailey will provide the first test. Experts in the field say the policy is not nearly as robust as policies in traditional employment settings, or those in academic institutions.

“A fox cannot guard the henhouse. Allegations against the Academy’s current president should logically be conducted by an outside, professional investigator.”
Lisa Maki, attorney

“To me, this is not targeted to have a full and fair investigation that gives a full hearing to both sides,” said Genie Harrison, an attorney who has sued Weinstein on behalf of a former assistant. “This is really riddled with every possible opportunity to abandon the effort and decide not to do anything.”

For starters, the policy states that the accuser’s word by itself is not sufficient to prove a violation of the Academy’s code of conduct. The allegation must be substantiated, and the onus of substantiating it is placed entirely on the complaining party; the Academy does not commit to doing any actual “investigation.” There is no provision for HR professionals or outside law firms to track down witnesses or dig up old text messages.

The protocol gives the accused an opportunity to respond to the allegations, but it does not say whether the accuser would be allowed to contest the response. The committee is expected to review the allegations, but the policy does not detail the standards for whether and how to act on them.

The policy also vows to protect accusers’ confidentiality “to the extent possible.” But once the accused is notified of the claim, it becomes impossible to guarantee confidentiality. The Academy is not always great at keeping secrets, as demonstrated by the leaking of the claims against Bailey to the press.

“An effective policy should make a victim feel safe about reporting,” said Lisa Maki, an attorney who specializes in sexual-harassment claims. She called the Academy’s policy a “good start” but said there are many unanswered questions, especially around confidentiality.

For instance, the policy states that complaints that come in over the phone must be recorded. “Who would hear the recording?” Maki asked. “In which circumstances are complaints confidential, and when are complaints made public? Do the victim or the accused have any say-so in that decision?”

Ashley Judd, Annabella Sciorra and Salma Hayek salute the #MeToo and Time’s Up movements at the 90th Academy Awards.
Aaron Poole / A.M.P.A.S.

She also doubted whether the Academy is equipped to investigate itself.

“A fox cannot guard the henhouse,” she said. “Allegations against its current president should logically be conducted by an outside, professional investigator.” The policy, however, reflects a continuing ambivalence within the organization about whether it should be investigating its members’ private lives. Before the Weinstein scandal, the Academy did not think that was part of its mission. Now it has accepted that it must uphold some sort of standard and is struggling to figure out how to do so. Not everyone is happy about it.

Academy member Larry Mirisch said he knows Bailey and does not believe the allegations against him. “He’s a decent guy,” he said. “It’s not who he is. It feels like someone was trying to destroy this man’s work as president of the Academy.”

Mirisch said the climate of harassment allegations reminds him of the blacklist.

“Knowing people who were around during the blacklist, this is what it feels like,” he said. “People are just looking to point fingers at people and smear people and hurt people. It’s very painful.”

At the same time, others are watching the Academy’s reaction to gauge how seriously it is taking the issue. “They have to be more forceful. They have to stand up for women,” Silverstein said. “This is not a witch hunt. This is a reckoning.”

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