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Serrins & Associates LLC Employment Law Blog

Thursday, October 19, 2017

The Harvey Weinstein Mess is a Stunning Case of Employer Misconduct

The Harvey Weinstein story functions as an example of things an employer, a manager, or anyone in a position of power within a business or place of employment, absolutely cannot do without breaking the law. Based on the reports coming out on an almost daily basis, Weinstein, as an owner and executive first of Miramax and then of The Weinstein Company, felt entirely unrestrained by the laws protecting employees and job applicants. All indications are that he saw himself to be above the law.

First let's make one thing clear: Much of what Weinstein is accused of doing not only violates discrimination laws, but may actually be criminal. We should clarify right off the bat that just because sexual assault occurs in the context of a business or professional relationship does not make it solely a civil matter governed by employment law. Assault is assault no matter who commits it on whom, and reports indicate law enforcement is investigating Weinstein for possible criminal violations.

From an employment law standpoint, the Weinstein stories, as we are now hearing them, contain examples of:

Sexual Harassment

When we speak about Harvey Weinstein now, and we speak of the accusations that surround him, we are speaking primarily (though not exclusively) about sexual harassment – unwanted advances of a sexual nature - and the many ways it can happen. As we have discussed on this website before, sexual harassment in the workplace can take two primary forms: it can be subtle and suggestive, or it can be explicit and obvious. Weinstein appears to have engaged in both, all with individuals either in his employ or hoping to work with him. The difference in power relationships common to many harassment cases is present here, in spades.

When he didn’t actually lay his hands on women, Weinstein is alleged to have instead placed immense sexual pressure on his targets, such as by requesting massages, undressing, requesting that women watch him shower, or making explicit sexual remarks. Implicit in all of this behavior, of course, is the incredible power Weinstein wielded in Hollywood. For actresses working for him, he could cut off that employment whenever he chose. For those who wished to work with him, anyone who reported him or failed to give in to his sexual advances faced possible professional ruin.

As dark and disturbing as these allegations are, Weinstein is also being accused of physically forcing himself on women and in some cases, raping them. The civil liabilities here are huge. Not only would Weinstein be violating statutory prohibitions on gender discrimination and harassment, he could also be sued for assault and battery, which comes with its own set of damages and penalties. It is no exaggeration to say that if even ten percent of the accusations we’ve heard in the last week are proven true and fall within the statute of limitations, Weinstein is looking at massive potential civil liability, as is his company if it helped cover up his behavior.

It appears that either Weinstein or his company’s legal team were aware that his behavior was causing or had the potential to cause legal trouble – it’s been reported that the Company reached “at least eight” legal settlements with accusers, some of whom signed strict non-disclosure agreements.

Retaliation

On this topic, consider Gwyneth Paltrows Harvey Weinstein story. The Oscar winning actress claims Weinstein, during a professional meeting to discuss Paltrow’s contract to star in the film Emma, asked Paltrow to come to his bedroom, put his hands on her suggestively, and requested a massage. Sufficiently upset, Paltrow told her then-boyfriend Brad Pitt, who warned Weinstein not to touch her again. Weinstein angrily called Paltrow and screamed at her not to discuss the incident with anyone. Paltrow complied, feeling as though if she did not, she would be fired from the film she was working on.Others claim Weinstein followed through on his threats and actually did harm their careers, which would be classic retaliation. Both Mira Sorvino and Rosanna Arquette, for example, have stated that they believe they lost out on work and promotional opportunities because they refused to sleep with Weinstein, or complained about his behavior.

A hostile work environment for employees

Weinstein is alleged to have, almost as a matter of custom, meeted and greeted actresses working in films produced by his company in hotel rooms as he wore a bathrobe, or less. He is claimed to have made regular provocative comments to employees, both actresses and administrative staff, that referenced sex and adultery in threatening and suggestive ways. We are even hearing claims that Weinstein roped other employees into his harassment, asking them to accompany actresses to his hotel room for a “business” meeting and then having them excuse themselves to "trick" the actresses into feeling safe. Even if certain of these incidents did not cross the line into requests for sex, they certainly contribute to a hostile and polluted atmosphere where women are made to feel uncomfortable as a matter of practice, and other employees are forced to participate in and aide in that culture.

A few leaks have now turned into a flood, with new accusers coming forward every day with their own Harvey Weinstein tales of terror. We will keep you updated on the fallout from these claims, and particularly the legal fallout. In the meantime, if any of the claims against Weinstein struck a chord with you or reminded you of behavior you have seen in an employer or colleague, contact our firm to set up a free phone consultation.





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