For about 20 years I practiced labor and employment law, in Hollywood no less. I’m no longer a lawyer, no longer licensed. And in fact, the studio’s general counsels would never give this advice. They’d be horrified. That’s because their job is to shield their studio from liability. I want to do the opposite — to increase risk for companies that allow executives, producers and other powerful people to run amok. Companies who really want to do the “right thing” and are committed to rooting out the kind of sexual harassment that the Harvey Weinstein scandal has brought to light will consider this advice. From a business point of view, following this advice might improve a studio’s image and attract more female talent.
First, chief executives should set up a hotline for themselves for matters concerning alleged sexual assault and demands for sexual favors involving senior executives, producers, directors and the like. That’s right; the most serious cases can be brought to the most senior person. If the employee/actor cannot resolve an issue or is afraid to go through corporate channels (which are inaccessible to most creative and production talent and crew), he or she can pick up the phone and leave a hotline message, preferably with a name so that the CEO can figure out who is allegedly doing what to whom. This is especially important for production deals involving smaller companies linked to the studio that are built around a powerful executive or creative person. People working for such a production company have to be able to call the CEO of the studio with whom that production company has a deal. CEOs/chairmen of the board must commit to contacting law enforcement in cases of alleged sexual assault. This is not a matter for “studio security” or other entities dependent on the studio.
In this way, the CEO is on the hook. He or she cannot point the finger at human resources or some lower-level executive when evidence of abuse surfaces. He cannot say, “Well, there goes Harvey.” And anyone who accesses the hotline should be protected from retaliation. When one gets to the level of CEO/chairman at a major publicly held company, the sensitivity to adverse publicity and liability is great. Make these people responsible for eradicating the worst behavior, and it will stop. (This is not a cure-all. It’s not clear that a hotline to Rupert Murdoch would have protected Fox News employees, but that, I would suggest, is the exception, not the rule.)
Second, the Supreme Court is currently considering whether as a condition of employment companies can impose arbitration agreements on employees. These limit or prohibit employees’ access to court, sending them to private arbitration. Sometimes contained in those agreements are the infamous NDAs — non-disclosure agreements that prevent employees from discussing virtually anything about their employment except in strictly limited circumstances. Perhaps the Supreme Court will strike down mandatory arbitration agreements, but studios can voluntarily commit to exempting sexual harassment and assault and other workplace mistreatment from these agreements. (Employees, in other words, cannot blab about the upcoming movie slate but are not prohibited from discussing publicly their abuse at the hands of studio executives or stars.) NDAs are among the most important tool for shutting up employees and wanna-be stars, keeping the culture of harassment hidden from view. That still leaves the problem of NDAs in settlement agreements, but so long as non-litigants have the right to speak freely about what is going on, word will filter out more quickly.
Third, studios should enact some simple, inviolate rules for themselves and producers attached to their studio. (Any rule can be violated, but this empowers lower-level employees and potential victims to say no.) No hotel meetings, and no run-back-to-my-apartment meetings. Those who conduct or enable such interactions can be fired or their studio deals terminated. Period. But that ruins the ambiance! This is a people business! You know, the ambiance could use some ruining.
Finally, employees collectively or through their union are allowed to refuse to do business with a studio. If every one of the high-powered stars who have spoken out vows not to work with studios, producers, etc., where they know or suspect such conduct is going on, the conduct will stop. A Ben Affleck or a Meryl Streep surely can use his/her star power to refrain from making pictures with the studio. I believe Meryl Streep when she says she was unaware of Weinstein’s alleged conduct because Weinstein wouldn’t dare pull that with her. She and others with that kind of power can use it to insist that studios clean up their act. And if that means fewer pictures, well, that’s the price of being someone committed to social justice.
Like I said, studio in-house and outside counsel will be horrified by any or all of these suggestions. There may be other mechanisms that are effective, but simply distributing a sexual harassment policy and training mid-level or even high-level executives is not enough. The people you have to worry about never think the rules apply to them. No foolproof method exists for stopping determined people from doing bad things.
But studios, if they wanted to, could vastly improve the situation, making it harder to prey on vulnerable people and easier to bring forth evidence of wrongdoing. The public companies’ boards and shareholders could demand they do so. What is required is for studio heads and top talent to commit personally to changing the casting-couch culture. If not, they should stop issuing press releases bemoaning the plight of their fellow entertainers.