Harvey Weinstein’s trial for rape and sexual assault has ended. After four days of deliberation, the jury found Weinstein guilty of Criminal Sexual Act Assault in the First Degree and Rape in the Third Degree (sex without consent). This trial should cause employers to take note. Although the Weinstein trial was a criminal trial and did not involve his employer as a party, the trial did involve Weinstein’s actions on the job as a leader, founder and chief officer of The Weinstein Company (TWC) and did implicate the Board responsible for running the company.
The trial outcome demonstrates the risk that the behavior of an employee like Weinstein could cause in making a company liable, not only for harassment under Title VII, but also for civil damages from sexual assault or rape. As allegations and testimony in Weinstein’s case establishes, harassment and sexual assault can be closely related, and an employer could easily find itself liable for both if it does not appropriately approach and manage harassment in the workplace:
Leading up to the trial, and in response to the #MeToo and Time’s UP movements, both men and women are changing their views towards harassment. The Weinstein verdict will likely only enforce and potentially increase those feelings:
A CBS News poll, released in January 2020, found that a majority of adults in the United States believe that the #MeToo and Time’s Up movements are changing how both men and women view, talk about and respond to incidents of sexual harassment. The poll reported that 52 percent of 18- to 29-year-old men are rethinking how men behave towards women and 29 percent of working women of all ages say they are now more likely to report sexual harassment in the workplace than before.
The Weinstein verdict offers a reminder that the manner in which employers and employees think and approach the issue of harassment in the workplace is changing, and those approaches warrant consideration and discussion:
Change the Conversation: Most of the employers who have been implicated in high-profile repeat-offender harassment cases had regular harassment training, but the companies for which they worked had not made anti-harassment an integral part of its culture. Rather they had just “checked the box” by performing annual or other cursory trainings. Employers have an opportunity and increased incentive to implement regular interactive trainings to establish clear boundaries, discuss respect and behavior in the workplace and open the conversation to involve both employees and leadership and cement awareness of workplace expectations.
Train High and Train Low: Tone comes from the top. Regardless of training and established policies, leadership determines how a company approaches and messages anti-harassment efforts and the level of tolerance for harassers. To make anti-harassment part of its cultural fabric, companies need to engage and train both their leadership (Board and C-suite members, managers, supervisors and any leader who sets the tone of the company, makes policy or influences how harassment will be handled in the company) and nonmanagerial employees about harassment, respect and behavior in the workplace.
Manage the Message: As recently as five to 10 years ago, employers were silent about the outcome of harassment investigations and the resulting discipline. Since the Weinstein story broke in 2017, employees and the public are demanding more transparency from employers that demonstrates a serious response to sexual harassment and appropriate discipline. Employers are finding that the increased transparency regarding discipline requires more thought than “silence.” Employers must determine how best to communicate its response to substantiated - as well as unsubstantiated - harassment allegations.
Reconsider Blanket Non-Disclosure Agreements: As part of efforts to maintain silence regarding harassment in the workplace, employers have historically utilized NDAs to protect the themselves. Recent efforts at federal and state legislative levels have disrupted the use of NDAs by attempting to change the employer’s available tax relief associated with NDAs, banning NDAs completely in sexual harassment cases or allowing NDAs in sexual harassment cases only to protect the victim, not the perpetrator’s, privacy. More employees are balking at signing NDAs in exchange for a settlement of their claims, and employers should anticipate demands for modified or limited NDAs in these situations.
For more information about Title VII liability risks or damages for rape of assault in the workplace, or other employment-related matters, contact Susan Motschiedler by calling (801) 532-1234 or send an email to smotschiedler@parsonsbehle.com.
