From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
By Jacquie Lee
In a post-Weinstein world, holding employees accountable for sexually harassing their colleagues has become a top priority for employers, but such accountability is made more arduous when the harasser is a contracted worker.
That’s especially true in the Weinstein-adjacent world of live theater.
The theater industry has a complicated structure that leads to a lot of work being contracted out, Thomas Carpenter, general counsel for Actor’s Equity, told Bloomberg Law. Actor’s Equity represents roughly 51,000 theatrical performers.
A lot of the work contracted out includes casting directors, who help vet performers who audition for parts in a show.
“They are making the short list of actors who will be seen so their role becomes very important,” Paul Mroczka said of casting directors. Mroczka is the director of the theater department at Plymouth State University in New Hampshire, but his theater experience ranges from acting and stage managing to writing, producing, and directing.
Because there are so many actors and so few roles, performers will put up with behavior that workers in other industries might not, Mroczka told Bloomberg Law.
“Years ago when I was younger, I’d see producers and directors putting the moves on actors or actresses right in front of me,” he said.
And when the person who’s harassing union members isn’t covered by the union’s flagship contract, it can complicate the process of holding that person accountable.
“Our bargaining agreement is with a producer,” Carpenter said. “If that producer hires a bunch of sub-contractors, the accountability there is layered in nuance. That’s a difficulty for us sometimes.”
But it’s not impossible to achieve accountability, he said.
People often think that if the person harassing them isn’t their employer they can’t file a complaint, Victoria Lipnic, acting chair of the Equal Employment Opportunity Commission, told Bloomberg Law.
“That’s not necessarily true,” Lipnic said. Even with independent contractors, harassment can be addressed under the law, she said.
Employers may be liable under Title VII of the 1964 Civil Rights Act for harassment by their independent contractors. The liability depends on whether the employer knew, or should have known, about the harassment and “failed to take prompt and appropriate corrective action,” the EEOC’s harassment guidelines say.
Actor’s Equity has partnered with the Actor’s Fund for years to give advice to members who’ve been harassed at work. The nonprofit fund provides entertainers with financial assistance and also helps with affordable housing, health care, and counseling. But when allegations about Hollywood producer Harvey Weinstein prompted a flood of similar complaints, the union decided to hold a meeting Dec. 5 to answer members’ most pressing questions, Carpenter said.
The agenda included educating members on what constitutes sexual harassment, avenues for reporting it, the potential risks of reporting, and how the union can help mitigate those risks.
It’s important for members to understand the difference between the union’s role and the employer’s, Carpenter said. It’s the employer’s duty to create harassment prevention policies and the union’s job to ensure that the employer follows through on that duty.
“The problem is a lot of smaller theaters or producers think of themselves as an artistic venture rather than an employer with legal obligations,” Carpenter said. That’s where the union steps in. For instance, Carpenter sent an email to all the theaters that employ Actor’s Equity members, reminding them about their legal responsibility to create sexual harassment policies. Most of the feedback was positive, Carpenter said.
The most effective harassment prevention policies are the ones created by the employer, he said.
“It’s hard to change the culture of a workplace, but it’s the employer’s responsibility to do that.”
To contact the reporter on this story: Jacquie Lee in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Peggy Aulino at email@example.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)