Hollywood’s Harassment Investigations Dogged by Lack of Consistency

Hollywood’s Harassment Investigations Dogged by Lack of Consistency

By:  Tatiana Siegel, The Hollywood Reporter

April 13, 2018

On Nov. 21, CBS News moved swiftly to fire Charlie Rose following a string of women accusing the star anchor of sexual harassment in a Washington Post article. There was an internal inquiry, and CBS News producers interviewed at least one accuser for an on-air report, but no outside investigator was hired.

Skipping an outside probe in this circumstance might seem unorthodox, especially considering the lengths to which many networks, studios and talent agencies have bent over backward to engage in by-the-book procedures in the wake of a tsunami of harassment claims inspired by the #MeToo movement. But CBS’ brisk action the day after the Post dropped its Nov. 20 story on his behavior, all of which came from his time on his eponymous PBS show, coincided with Rose’s contract: Sources say the pact ran out at the end of the year.

However, CBS did conduct a more substantive subsequent internal review, the network has said, and like most media companies, has instituted mandatory in-person harassment training and awareness programs for all employees, including on-air talent. But that all came in the aftermath of Rose’s ouster.

The Rose case illustrates the challenge many lawyers and industry insiders have observed in the months since the #MeToo era was launched by the Harvey Weinstein revelations in The New York Times and The New Yorker. The movement has touched nearly every single major company in Hollywood and has expanded beyond sexual misdeeds to now include allegations of once-accepted behaviors like yelling and abusiveness on set. Yet there is little consistency in how claims are handled and adjudicated, and many say that ambiguity is problematic for both the accusers and accused.

“Studios have no uniformity to their disciplinary and investigative processes,” says attorney Bryan Freedman of Freedman & Taitelman, whose clients include UTA. “Some have been thoughtful and have investigated claims thoroughly before making any determinations. Others have been reactionary and have taken disciplinary action immediately upon learning of an allegation without following the procedures in their employee handbooks.” In fact, Freedman predicts employers who take disciplinary actions without following their own guidelines could face legal liability down the line. “There may be significant exposure should the action taken be wrongful and without adherence to an agreed-upon process,” he adds.

At some companies, claims are investigated internally; at others, an outside investigator is hired immediately. At some outlets, employees are put on leave during a probe; at others, they aren’t. While NBC News fired Matt Lauer on Nov. 29 after a “review” of accusations against the Todayanchor, the formal investigation by NBCUniversal’s legal department, which is led by Kim Harris and is expected to interview at least 40 people, is still ongoing. Results are expected in the coming weeks, and NBC News Group chairman Andy Lack has promised that the review will include a “culture assessment” of the news division. But the question remains just how exhaustive these investigations are and, considering the financial stakes, whether the top of Hollywood’s food chain faces as much scrutiny as the bottom.

The E! wardrobe stylist who accused Ryan Seacrest of sexual harassment has alleged that the investigation that cleared the host was not thorough enough. Nearly three months after Suzie Hardy complained to E!, outside counsel hired by parent NBCUniversal completed its investigation and found “insufficient evidence to support the claims.” Hardy then went public and alleged the probe was one-sided given that investigators never contacted four witnesses she had provided who she said could corroborate parts of her story. NBCU sources argued that its investigation focused only on eyewitnesses, which would not have included people Hardy says she told of the abuse.

The kind of behavior companies are investigating varies greatly as well. Jeff Franklin was fired as showrunner of Fuller House, produced by Warner Bros. TV for Netflix, in late February after complaints of verbal abuse by the TV veteran in the writers room and on the set. Franklin, who quickly hired attorney Larry Stein to fight the allegations, was not accused of sexual harassment or physical misconduct, and it is unclear what kind of investigation Warner Bros. launched. Andrew Kreisberg, another Warner Bros. TV producer, was let go after several subordinates went public with complaints of abusiveness, but only after WBTV investigated the claims.

When it comes to getting to the heart of allegations, Latham & Watkins attorney Marvin Putnam says the best strategy is to hire outside counsel. “Inside counsel is generally seen as part of management. As such, complainants — as well as witnesses — are often reluctant to come forward or be completely forthcoming,” says Putnam, who was hired by ICM Partners to look into claims by former Fox News contributor Tamara Holder that agents discouraged her from filing a sexual assault complaint against the network. “Moreover, any finding — short of separation — can be viewed with skepticism or as outcome determinative.”

“Time is of the essence,” adds employment lawyer Ann Fromholz, who was retained by WME in early February to investigate harassment allegations against agent Philip Raskind. (Raskind remains at work during the probe, in contrast to another WME agent, Adam Venit, who was suspended without pay following a harassment investigation, then reinstated.) “I gather whatever [documents and evidence] I can before the first interview,” says Fromholz. “This all happens quickly because you need to act promptly in these cases, particularly if these people are still working together. Then I begin interviews.”

After a three-week investigation, ICM agents Steve Levine, Matt Sorger and Will Horowitz were cleared of any misconduct in the Holder case. By contrast, CAA is said to have conducted its own internal investigation into agent Cameron Mitchell, who was fired for cause in the wake of a claim by an actress that he sexually assaulted her.

Outside investigations don’t come cheap. A typical probe that runs less than a month costs in the low-six figures; the longer and more complex, the higher the tally. A number of lawyers were enlisted to vet the single claim of sexual harassment against Academy president John Bailey, including Loeb & Loeb’s Ivy Kagan Bierman, Latham & Watkins’ David Schindler (hired by Bailey) and Quinn Emanuel’s John Quinn (AMPAS’ longtime general counsel). Bailey was cleared by the Academy board two weeks after the claim was first made.

In the face of allegations against Weinstein in October, The Weinstein Co. hired Debevoise & Plimpton to conduct an independent investigation. But according to TWC bankruptcy filings, a special board committee halted the probe less than one month later when the company ran out of funds, derailing the process at its most critical juncture.

Kagan Bierman says each claim must be evaluated in its own right. “I start with the claimant. I ask if they have any witnesses, talk to the witnesses, then go to the accused and tell the person what the allegations are and give that person a chance to respond and give witnesses,” she says. “Then I sit down with the client and tell them what information and facts I have and give an assessment of the credibility of the people I’ve spoken with. The client always makes the decisions about what the resolution will be.”

Fans of hiring outside investigators say a thorough process can benefit accusers seeking justice as well as those who are falsely accused and later vindicated. And the fact that the scope of “bad behaviors” is broadening beyond sexual harassment only underscores the desire for consistency in response. In recent weeks, actor Fred Savage and Stranger Things creators Matt and Ross Duffer have been accused by female below-the-line workers of creating hostile work environments. In the case of the Duffers, Netflix said, “We looked into the concern … and found no wrongdoing.” Savage, accused by a costume designer on his short-lived series The Grinder, was cleared by Fox at the time in 2015. But he and the studio now face a lawsuit filed by the woman.

Sometimes staffers can be quizzed as part of multiple harassment probes going on simultaneously. Even before Nov. 3, when Netflix severed ties with House of Cards star Kevin Spacey after mounting allegations of sexual harassment, series staffers were receiving calls from an investigator asking about Cards co-star Robin Wright.

A Cards crewmember, a woman in the costume department, had lodged a formal complaint against Wright, accusing the actress of striking her during a fitting several months earlier. Sources say MRC, the show’s producer (which shares a parent company with THR), immediately launched an internal investigation, found no wrongdoing on the part of Wright and considers the matter closed. However, MRC’s investigation into Spacey remains open while the studio attempts to thoroughly follow up on all leads and complaints.

Lawyers say consistency is important because investigations are now the new normal in Hollywood. Notes Kagan Bierman, “Many claimants just want to be heard, want it to be taken seriously, want it to be investigated and want a resolution that works for them.”

Ashley Cullins and Marisa Guthrie contributed to this report.

 

No More Quotes: How A Salary History Law Is Changing Hollywood For Women

No More Quotes: How A Salary History Law Is Changing Hollywood For Women

By:  Natalie Robehmed

April 11, 2018

Hollywood has a new way of negotiating talent deals — and it seems to be helping women.

A California-wide law that took effect in January prevents all employers from asking potential employees for their salary history. In corporate workplaces, it’s altered the tempo of traditional compensation discussions. But in entertainment, it’s rewritten the playbook for agents and studio executives who have long used quotes to establish pay.

“It’s totally changed how the negotiating process is taking place,” said one agency insider.

An actor’s quote is what they were paid for their most recent gig. Their agent will typically advocate for an incremental increase with each job, ranging from $2,500 to seven figures, depending on the medium, an actor’s experience and popularity. The more work an actor gets, the more they are able to build their quote.

In an industry that fills only 31% of roles with women and 29% with people of underrepresented racial and ethnic groups, such a system benefited those for whom there were many roles to fill — white men. The disparity is even worse behind the camera, where women and people of color occupied just 4% and 8% of directors’ chairs, respectively, according to recent studies by the USC Annenberg Inclusion Initiative.

That has translated to a pervasive compensation disparity between actors and actresses, even at the very top. The world’s 10 highest-paid actors banked a cumulative $488.5 million last year — nearly three times the $172.5 million combined total of the 10 top-earning women.

“[The law] is part of the effort to solve the gender pay gap,” explained employment attorney Ann Fromholz, principal at The Fromholz Firm. “The thinking is that if companies pay people based on merit, there will be more equality in pay, and if they pay them based on what they were making at their previous job, they will be liable to continue pay inequity.”

In the wake of Time’s Up and #MeToo, Hollywood has never been more attuned to wage disparity. Recent bad publicity from revelations of unequal pay between Netflix’s The Crown co-stars and Michelle Williams and Mark Wahlberg in All The Money In The World has turned up the heat. Enter Bill No. 168, which aimed to diminish the pay gap by making it illegal for a studio to ask for the quote of any employee, be they an actor, writer or director.

Previously, a studio would approach an agent with a potential deal and inquire about their client’s quote. The agent would provide the actor’s quote, citing the client’s most recent paycheck on a specific project at a rival studio. The business affairs executive at the prospective studio would then call the previous studio to verify the provided quote was accurate. Negotiations would proceed from there.

Now several agents say they have been able to pull off huge salary leaps for clients, specifically women and people of color, who have been systemically underpaid and underemployed. They cite remuneration increases of between 12% and 20% from project to project — far more than the standard incremental bumps prior to the law’s introduction.

Of course, business affairs executives have developed workarounds. Many have been using careful language to inquire about “salary expectations” or “spheres of pay.” Others with experience are already very knowledgeable about what stars receive and have been impacted minimally by the change.

If an offer comes in far below what the actor normally gets, talent can opt to release their quote by giving their agent written permission to share their salary history. “If they come in much higher than the quote, I keep my mouth shut and counter,” said another insider.

But even when quotes are provided, studios are no longer allowed to make calls to verify them, leaving the potential for more money on the table. “Because they can’t check quotes, you could make up anything you feel your client deserves,” said another longtime agent.

Others have been hurt by the law. Novice business executives using software to track projects in development can miss deals that never made it onto industry databases, such as Studio System, Variety Edge, IMDbPro and The Industry Edge. Without accurate information or previous quotes, some say, the change has led to lower offers, particularly for performers with brief track records. In the most extreme cases, initial deals have been as low as 40% of a client’s quote, according to sources.

“It seems the first reaction from companies is to offer as little as possible and then say, ‘If you want more, you have to justify it,'” said entertainment lawyer Linda Lichter, founding partner at Lichter, Grossman, Nichols, Adler & Feldman. “It has the impact of empowering the companies to be even more aggressive about keeping prices down.”

Some feel the law may backfire for women in corporate workplaces. “One of the reasons that’s always been given for the pay gap is the notion that men are more assertive and better at advocating for themselves,” said employment attorney Jack Schaedel, partner at Scali Rasmussen. “If men are more brash about demanding something, what’s to stop them from saying they make way more to influence [the employer] to pay them more?”

It’s too early to tell whether the law will tip the scales, but advocates remain optimistic that it could help finally achieve pay parity for women and minorities in entertainment.

Workplace Bullying and Harassment: What’s the Difference?

Workplace Bullying and Harassment: What’s the Difference?

By: Lisa Nagele-Piazza
March 8, 2018
HR Magazine

Workplace civility policies can cover both unlawful and inappropriate conduct

As HR professionals strive to ensure a safe and inclusive workplace for everyone, they should note that some harmful bullying behaviors that aren’t technically unlawful harassment can still be addressed in a workplace civility policy.

An employer’s policies can be more protective of employees than the law can, said Ann Fromholz, an attorney with The Fromholz Firm in Pasadena, Calif. “If having a workplace free from bullying is important to employers, they can go a long way to achieving that by modeling behavior, having a good policy and enforcing that policy.”

What Is Bullying?

Bullying is generally defined as unwelcome behavior that occurs over a period of time and is meant to harm someone who feels powerless to respond.

Verbal bullying includes teasing and threatening to cause harm, according to stopbullying.gov, a website managed by the U.S. Department of Health and Human Services.

Social bullying in the workplace might happen by leaving someone out of a meeting on purpose or publicly reprimanding someone.

A 2017 survey by the Workplace Bullying Institute estimated that 61 percent of U.S. employees are aware of abusive conduct in the workplace, 19 percent have experienced it and another 19 percent have witnessed it.

These behaviors may or may not constitute unlawful harassment. Bullying is actionable under federal law only when the basis for it is tied to a protected category, such as race or sex, explained Jessica Westerman, an attorney with Katz, Marshall & Banks in Washington, D.C. Specifically, Title VII of the Civil Rights Act of 1964 prohibits harassment on the basis of color, national origin, race, religion and sex. Other federal laws prohibit such behavior on the basis of age, disability and genetic information.

Additionally, if bullying amounts to some other civil or criminal wrong, such as assault or battery, it could amount to a claim under state law, Fromholz noted.

So a manager who is mean to everyone—who is sometimes known as the “equal opportunity harasser”—might not be engaging in unlawful conduct. But that doesn’t mean it must be tolerated in the workplace.

“Employers can have codes of conduct that address respect in the workplace and hold employees accountable if they do not treat others with respect,” Fromholz said.

State Law Trends

“In the absence of federal legislation prohibiting generic workplace bullying, several states are considering legislation that would provide severely bullied employees with a claim for damages if they can prove that they suffered mental or physical harm as a result of the bullying,” Westerman said.

Legislatures in 29 states have introduced workplace anti-bullying bills in recent years, according to the Healthy Workplace Campaign.

For example, S.B. 1013, a bill that was introduced in Massachusetts in 2017, would prohibit all “abusive conduct” against employees—even if it isn’t based on a protected characteristic.

Since Jan. 1, 2015, California businesses have been required to train supervisors on how to identify abusive conduct as part of their sexual harassment prevention training. “So far, however, there is no private right of action for bullying in the workplace,” Fromholz noted.

HR’s Role

Even without a law against general bullying, employers can create policies and practices to prevent and prohibit such behavior. Westerman suggests that employers:

  • Conduct a climate survey to learn about the problems in their particular workplace and use the survey’s findings to tailor policies and procedures to that workplace.
  • Adopt clear, written anti-bullying policies in as many languages as are spoken in the workplace.
  • Foster an organizational culture that prioritizes inclusion and doesn’t tolerate bullying by regularly demonstrating a commitment to anti-bullying policies.
  • Conduct bystander intervention training, which empowers co-workers to intervene when they witness bullying or harassing behavior. This “helps create a sense of collective responsibility for eliminating bullying and other problematic behavior in the workplace,” Westerman said.
  • Conduct workplace civility training, which may reduce the likelihood that bullying will occur by promoting respect among employees from different backgrounds and at different job levels.
  • Implement clear and straightforward procedures so that employees know how and where to report incidents. These procedures should include multiple confidential reporting channels.
  • Make an effort to maintain employees’ confidentiality throughout the investigation. If employees need to be identified, investigators should notify employees about the possibility that co-workers will learn about their complaints.

Workers who are victims of bullying or harassment should know they can promptly report incidents to their supervisors, management-level employees, human resource representatives or other employees designated to receive reports, Westerman said.