A Candid Legal Debate on Hollywood and #MeToo: "Did the Law Fail Us?"
Photographed by Charles W. Murphy

A Candid Legal Debate on Hollywood and #MeToo: "Did the Law Fail Us?"

Five experts on workplace harassment explore the tension between activism and a "rush to judgement” and voice concerns about due process amid the new court of the media.

When Harvey Weinstein's alleged victims came forward, few anticipated how transformative a cultural moment they would spark. In the media and entertainment industries, at least, #MeToo and Time's Up are here to stay, and women — and men, too — are silent no more.

The divergence between a slow, deliberative legal system and media outlets forced to operate at internet speeds creates numerous dilemmas. Not every allegation is true — yet for too long, even true allegations often have been suppressed, ignored or discouraged. And there's that word "alleged." In the eyes of the law, even Weinstein, the poster villain for the new movement, is still considered innocent until proven guilty. He's been convicted of nothing, criminally charged with nothing, found civilly liable for nothing, and denies every allegation of nonconsensual sex. But in the court of public opinion, Weinstein is already behind bars, his namesake company bankrupt.

Sexual harassment on the job has been recognized as unlawful at least since a landmark 1986 Supreme Court case, yet it remains pervasive. In England, when the courts of law failed to provide a remedy, a parallel and more flexible system — called courts of equity — stepped into the breach. Today, the court of public opinion seems to be playing a similar role. But can it balance speed with fairness? What happens to due process? And do the punishments always fit the (alleged) crime?

To explore those questions, The Hollywood Reporter convened five legal experts who have frontline experience with these kinds of issues: Louise Ann Fernandez, who represents employers like Northrop Grumman and executives, including some who have been wrongly accused; Ann Fromholz, who conducts discrimination and harassment investigations; Larry Gross, a professor at the USC Annenberg School for Communication and Journalism who specializes in ethics and mass media; Eve Wagner, who represents employers and employees, with clients including Sony Pictures; and David White, national executive director of SAG-AFTRA and a member of the industrywide Commission on Sexual Harassment and Advancing Equality in the Workplace, chaired by Anita Hill. Their conversation has been condensed and edited for clarity.

LARRY GROSS The real change to me is #MeToo means "everybody now tell your story." There's a concept in sociology and media studies called the "spiral of silence," which means when something isn't talked about, it becomes harder to talk about it. Nobody wants to be the one who stands up and says an unpopular opinion. This, I think, is the reverse. It's what I call the "spiral of speaking" because as it gets going, now you feel like you are obliged to join in this movement. It flips the social pressure from not wanting to stand out to wanting to be a part of it and join in. On a lot of these stories, nobody wants to be first. But everyone wants to be second.

DAVID WHITE But in this instance, a lot of people for years — for decades — refused even to be second. So I still think the question is: What's going on here? It is the speed with which truly powerful people went down, and they went down hard. When you're talking about Roger Ailes, Harvey Weinstein, Matt Lauer, you're talking about individuals who were confronted by their employer [who] then said, "We believe the women."

EVE WAGNER You know, I'm old enough to remember the Anita Hill-Clarence Thomas days. I was an associate at a large law firm. We thought, "Oh my God, this is it. We're finally having this dialogue." And there was a dialogue, but then the backlash came. I heard male partners walking down the halls going, "Well, I'm never going to have lunch with a female associate." And then you start seeing a lot of lawsuits, and some were not as meritorious as others. It got to the point where judges would look at the file and say, "Oh, it's another sexual harassment case." And you can almost visibly see them roll their eyes. And everything started to simmer back down, and it's just been simmering there, waiting for something to explode.

ANN FROMHOLZ David, you made a point that people lost their jobs and lost their careers with a great deal of speed. And that's what we see on the outside. But what people who aren't perhaps as knowledgeable about employment law and how these things work internally don't think about, is that there was an investigation in every single one of those instances. Now, those investigations may have been very fast. They may have taken a day and thrown a whole bunch of people at a workplace to interview 20 people and see what happened. But there is not just an assumption that because someone complains, they're telling the truth and therefore someone will be fired. That's what it looks like to some people.

LOUISE ANN FERNANDEZ But there's sort of the rush to judgment that we have to talk about, too — in terms of, are the investigations being done properly at this point in time? Because there's a lot to be said about the frenzy of the moment.

WHITE What I think you're getting to is: What's going on behind the scenes? And that's a conversation about due process and investigation and years of open secrets. What gets to the truly compressed time period between hearing about a complaint and someone being removed from their job? That is new for people to see. "I read about it on Friday, and he's no longer in front of the camera on Monday." That kind of speed, even if behind the scenes there's been a lengthy investigation, I think adds to a certain sense of being heard in a way that feels different than before.

FROMHOLZ Right. And it emboldens people in the average workplace perhaps to come forward in a way they might not have.

WAGNER Hopefully.

WHITE One can only hope. That's right.

GROSS Well, there's the opposite of that, though. I think back to the late '40s and the '50s and what we call "McCarthyism" now, the Cold War witch hunts. In fact, blacklisting very often happened exactly in that way, where the time lag between the rumor or the accusation and the removal was equally fast. So, if the Catholic Church is at the far end of doing nothing for years except covering up and moving [pedophile priests] around, the other side can be too fast to judgment.

WHITE I do think the weight of the conspiracy of silence, the gravity of the open secret where no one takes any action, needs to be countered with such tremendous force to give space to voices of people who did not previously have any room to share their experience. The due process conversation, as an attorney, is very important to me. [But] we need to be careful because due process in this situation has been used to prevent people from having the space to use their voice. We are a long way, in my view, from being too concerned about the lack of due process.

FERNANDEZ A number of us are employment lawyers and we think about due process in terms of, "Is there a good cause to terminate somebody?" We also have to talk about media here, because somebody can be tried in the media for something that happened many, many, many years ago that will be reported as an unconfirmed rumor or an allegation. And they're not going to get work again. It doesn't matter if they're fired. Due process is all well and good if we were looking in the context with the courts. But we're not. We're looking at it in the context of public opinion. And that's a very different thing. Someone who's accused in the media has no recourse. Say that they're accused and there is an investigation. Say there's a thorough investigation at their employer. There's never going to be a retraction. And even if there is, no one's ever going to read it. People will remember that accusation. It never goes away.

WHITE The trauma of a false accusation needs to be taken really seriously. There is the actual due process that absolutely must be respected, not overused to preclude people from being able to come forward in the first place. But then, in addition, there is this media overlay that has less to do with actual due process and more to do with a jump to conclusion that is broadly publicized with no recourse to rehabilitate a reputation.

WAGNER Another really important piece of this is also proportionality. My concern is that if we don't get back to talking about the punishment fitting the crime that #MeToo and Time's Up are eventually going to lose credibility and they're going to get the backlash.

GROSS That's the biggest loss when these things start. I mean, it's the definition of sex panic, moral panic.

WAGNER Well, it's going to cause a huge backlash. You're already hearing a lot of men saying just what I used to hear back in the days of Anita Hill and Clarence Thomas. "It's getting to the point where, if I'm going out of town with a colleague of the opposite sex, we're not going to have lunch." And that's wrong. We cannot have that.

WHITE Well, it is wrong. But coming out against a colleague and stating that that person has committed a crime against you, has assaulted you, is a very difficult thing to do. There is a natural hurdle that people have to overcome before taking that step, which offers a certain level of credibility. It doesn't mean that every allegation is correct. And it doesn't mean that we don't have to be extremely wary of false accusations. But that is a difficult thing to do, particularly in this industry where you are very well destroying relationships that will offer you work.

WAGNER There's nothing wrong with having a zero tolerance policy for harassment. That's not what we're saying. What I'm saying is that the punishment has to fit the crime. If somebody sends some emails with some off-color jokes, they should be spoken to, they should be educated and they need to be told to knock it off. If somebody engages in sexual assault, they need to have their ass kicked out of the company and appropriate consequences. But there's a huge spectrum between education and training and somebody being ousted. Without having that proportionality, I think the movement loses credibility.

WHITE What's interesting is that you actually need all of these perspectives in order to get to the right spot. If I spend all of my time, as I do right now, trying to put together a system to allow people to have the voice, my perspective is focused on making sure people actually have the platform. If you are spending your time with people who are dealing with a disproportionate response, then your perspective is going to bring that to the table. You actually need all of those perspectives to recalibrate the system to get this right.

FROMHOLZ A lot of this brings up a question: Did the law fail us? My personal belief is the law didn't fail us, our trust in it did. Because the law that applies to these situations, the employment law about the investigations that have to be done, about the actions that need to be taken, and the proportionality of those actions is, I believe, fairly right on. But we, the greater we, didn't believe in the protections of the law. People didn't trust that the protections against retaliation that are in the law would actually protect them. In a lot of cases, particularly in the entertainment industry, they were right not to trust the law because until very recently there was very little concern about retaliation [against accusers].

GROSS Well, the media industries are different than many others because it's always easy to find reasons not to hire somebody.

WHITE But that's the difficulty of this, right? So much of what happens in a freelance work environment is dependent on the long-term nature and the strength of relationships. And those are built in spaces outside of a workplace, at festivals and at networking events where there is no set of rules regulating behavior. So, if the person wants to hit on you, they can do that. And that's considered under the law free play. But there's a power dynamic there where it's not two consenting adults. It's someone who may need that relationship to work.

FROMHOLZ Offsite holiday parties and national sales meetings, we used to joke, were the reasons we still had jobs.

WHITE I am optimistic. We look at the coming generation of leaders and holders of the institutions and of our traditional culture and customs, [and] we are moving in the right direction. It's fits and starts, as big change always is. Hopefully we have a moment like what happened with LGBTQ where you see breathtaking accelerated change happen all at once because it has been simmering underneath and you have movement that you never expected. As it relates to sexual harassment, we may be in that moment right now as a result of all this energy and focus, and it's our job to seize the opportunity.

FERNANDEZ We have to find opportunities for people to listen; to hear other voices, because we're too siloed.

WAGNER We're losing the ability to have conversations. And it's incredibly important to engage in actual dialogue. Have training not just for the supervisors, have training for everybody in the company. Don't have online training, make it in-person training, so you can actually talk about what this means in the real world.

FROMHOLZ I also think we should mention the whole due process thing. Due process works for everybody, and don't rush to judgment.

This story first appeared in the April 4 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.

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