Tuesday, October 17, 2017

Weinstein case highlights problem of “ostriching” harassment

It’s been a busy few days in employment-law land, with the Harvey Weinstein sexual harassment case dominating the headlines.

What have we learned?
  • Weinstein is an (alleged) (do I really need to add this qualifier?) serial harasser, maybe one of the worst in history.
  • His misconduct was the worst kept secret in Hollywood, with even Courtney Love discussing it all the way back in 2005.
  • The Weinstein Company, and the members of its board of director, are in deep, deep trouble for ignoring Harvey’s (alleged) wandering eyes, hands, etc.

In the past fews days I’ve discussed these issues with both the Guardian (here) and Business Insurance (here).

In both interviews I made similar remarks about the company’s and its board members’ impending legal troubles:
Referring to reports that Mr. Weinstein had settled a number of sexual harassment charges in the past, Mr. Hyman said if board members see large checks going out, “maybe you should ask somebody why we’re cutting so-and-so a $100,000 check — and if you don’t have the answer, maybe you have an obligation to get to the bottom of what’s going on.” 
There was “so much smoke, it’s hard to believe any one besides Harvey didn’t know what was going on,” said Mr. Hyman. … 
“If I were a board member, I’d be really nervous” about investors suing the company for breach of their fiduciary obligations, Mr. Hyman said. 
He pointed to litigation filed by shareholders of Los Angeles-based American Apparel Inc., which faced shareholder lawsuits after its former chairman, Dov Charney, was fired for allegedly misusing funds and allowing the posting on the internet of nude photos of a former female employee who had accused him of sexual harassment.
In other words, an employer cannot turn a blind eye to harassment that is happening right under its nose, no matter the perpetrator. No one wants to watch Harvey Weinstein play with little Harvey, especially the myriad women claiming he did that in front of them.

Or, as I put it back in 2011, in writing about Penn State’s handling of Jerry Sandusky, an employer “cannot ‘ostrich’ harassment allegations”—
If you take nothing else away from this horrible story, let it be this point: under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If you opt for the “ostrich,” all you will see after shaking the sand off your face is an expensive (and indefensible?) harassment lawsuit. 
Maybe employers will eventually learn this important lesson.