The Briefcase Diaries

Civil Rights Protections in the Entertainment Industry

CIVIL RIGHTS PROTECTIONS IN THE ENTERTAINMENT INDUSTRY
In Light of New York Attorney General’s Investigation into The Weinstein Co.

New York’s Attorney General, Eric Schneiderman, has initiated a civil rights investigation into The Weinstein Co., a film studio co-founded by Harvey Weinstein.[1]  As a result of numerous sexual harassment and assault allegations against Weinstein, Schneiderman’s Civil Rights Bureau subpoenaed the company to determine whether such allegations reveal broader issues of civil rights violations and gender discrimination.[2]  The Bureau is seeking documents related to complaints of sexual harassment and other discrimination, along with any evidence demonstrating how such complaints were handled. [3]   Additionally, the Bureau is seeking files regarding hiring criteria and casting.[4]

The circumstances raise two issues. The first issue is whether The Weinstein Co. violated federal and state civil rights laws or New York City Human Rights Law. And the second issue is whether the company is financially liable for such harassment, discrimination, and misconduct.[5]

New York State recognizes that sexual harassment is an unlawful practice which violates (1) Title VII of the Civil Rights Act of 1964; (2) The Civil Rights Law of 1991; and The New York State Human Rights Law.[6]

Title VII of the Civil Rights Act of 1964
Section 703 of Title VII of the Civil Rights Act of 1964 states that any “cause or attempt” to discriminate against an individual based on race, religion, sex, or nationality is an “unlawful employment practice.”[7] Under the Act, unlawful employment practices also include the refusal to hire and any limitations depriving employees from of employment opportunities based on race, religion, sex, or national.[8]

Here, evidence from the investigation could reveal that The Weinstein Co. engaged in unlawful employment practices based on documentation of complaints and personnel files regarding hiring criteria and casting.

However, the Act is still limited to employer and employee relationships.

The Civil Rights Law of 1991
The Civil Rights Law of 1991 sought to remedy the limitations of Title VII of the Civil Rights Act of 1964.  It expanded the scope of protection by providing victims of discrimination a right to a jury trial.[9] Furthermore, the amended law provided compensatory and punitive damages for emotional pain, suffering, mental anguish, loss of enjoyment of life, and other losses.[10]

Here, complaints and testimonies from assault victims could provide evidence of emotional pain, suffering, and mental anguish. The Civil Rights Law of 1991 answers the question of whether the company holds financial responsibility in their misconduct. If losses such as emotional pain, suffering, and mental anguish are found, then victims could receive compensatory and punitive damages.

Still, while the amendments expanded the scope of protection, there was to still no clarification as to whether the law applied strictly to the employer and employee relationship.

 The New York State Human Rights Law
The New York State Human Rights Law prohibits the discrimination based on age, sex, race, religion, and nationality in employment, housing, education, and public accommodations.[11]

Similarly, evidence from the investigation could lead to sufficient findings of discrimination in the employment sphere.

Nevertheless, given the circumstances of the situation, there is still a question as to whether the victims were actually employees of The Weinstein Co.  Many of the victims are actresses and models who have been affiliated with The Weinstein Co. but not technically employed by the company. The unfortunate series of events has shed light on issues of legal protection for individuals, such as actors and models, who are independent contractors hired for a particular project and for a limited amount of time.

Solutions
The Weinstein allegations has prompted legislative proposals in New York to afford protection to victims of sexual assault and discrimination.  Assemblywoman Nily Rozic of Queens has recently introduced a bill called the “’Models’ Harassment Protection Act,’” which protects models and other workers in the fashion industry from sexual harassment regardless of their status as employees or independent contractors.[12]  Additionally, Assemblymember Linda B. Rosenthal of Manhattan has introduced a bill prohibiting New York businesses from tax benefits if any of its subsidiaries or principals knew or should have known about sexual harassment and discrimination taking place in the company and failed to take action to cease it.  Her proposed legislation was in response to the tax benefits The Weistein Co. received for producing films in New York. Not only does this bill provide further protections against sexual assault, but it holds subsidiaries and principals accountable for any knowledge of sexual harassment.

In sum, New York has initiated a critical investigation that could lead to more solutions in dealing with sexual harassment and discrimination in

[1] Megan Twohey, Weinstein Company Faces Civil Rights Inquiry by New York Attorney General, N.Y. Times, Oct. 23, 2017, https://www.nytimes.com/2017/10/23/us/harvey-weinstein-eric-schneiderman.html.
[2] Id.
[3] Josefa Velasquez. The Weinstein Company Now Probed by AG Schneiderman, N.Y. Law Journal, Oct. 23, 2017, http://www.law.com/newyorklawjournal/sites/newyorklawjournal/2017/10/23/102317ny_weinstein.
[4] Id.
[5] Twohey, supra.
[6] Policy Statement on Sexual Harassment, https://labor.ny.gov/formsdocs/DEOD/ga812.pdf.
[7] 42 U.S.C. §2000e-2(c)(3).
[8] Id.
[9] 42 U.S.C. §1981(c).
[10] 42 U.S.C. §1981(b).
[11] N.Y. Code §8-107
[12] Rozic Announces Legislation to Protect Models from Sexual Harassment, Oct. 23, 2017, http://nyassembly.gov/mem/Nily-Rozic/story/77731/

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