Hollywood Guilds' Role in Curbing Sexual Harassment May Be Limited

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Concrete problems of procedure and proof may limit a union's ability to do anything about sexual harassment beyond statements, research and moral support.

As allegations of sexual harassment, sexual assault and rape continue to emerge against powerful men in the entertainment business, many from actresses, so have questions about the role of the various institutions that should be protecting these women: human resources departments, talent agencies and unions. Each faces different issues — and the unions, in particular, have been criticized and now struggle with what to do.

The leaders of all four above-the-line unions — SAG-AFTRA, the Directors Guild and the Writers Guilds East and West — have issued statements in recent weeks condemning sexual abuse. So have IATSE, the Canadian performers' union ACTRA and the International Federation of Actors, which is a federation of actors' unions.

Several of the unions have long been pushing for diversity and publishing statistical research; equalizing male and female representation and power is critical to reducing harassment. And the Alliance of Motion Picture and Television Producers has told The Hollywood Reporter that online sexual harassment training is now mandatory for below-the-line workers, some 40,000 of whom are expected to receive it over the next two years.

But while the Academy of Motion Picture Arts and Sciences and the Producers Guild of America both moved quickly to expel Harvey Weinstein, such options may be more difficult for the unions. The Academy and the PGA are both voluntary associations, free to set standards for their members' behavior, but, unlike the unions, they have no contractual control over conditions on film and TV sets. And even the unions' power is limited by the terms of their collective bargaining agreements with studios and producers.

For the unions, the question of how to take action with real teeth is so fraught that none of them, except for SAG-AFTRA, responded to THR's questions on how they might move beyond statements and statistics.

One problem is that some of the perpetrators are themselves guild members. Abusive men with power are often producers, executives, agents and managers. But some are showrunners or film directors, and therefore union members. Those cases could put the guilds in an awkward position.

There's an even more difficult problem: Legally, even such now-notorious figures as Weinstein and writer-director James Toback have to be considered innocent at the moment. While authorities from Beverly Hills to New York to London have begun various investigations, neither man has been charged with a crime, let alone convicted. While at least two actresses have launched suits against Weinstein, neither man has been found liable in civil litigation. The reported 50-plus accusations against Weinstein and 300-plus against Toback remain allegations.

Unions aren't law enforcement agencies. They don't have powers of subpoena and arrest. That leaves the guilds in a quandary when presented with, say, one or even two or three allegations against an alleged abuser. They find themselves in a position of having to decide whom to believe, while protecting the rights of not just the accusers, but also anyone who might be falsely accused. As history shows, in this industry, and in others, false accusations — and even wrongful litigation and prosecution — unfortunately do happen.

And union arbitration is not a satisfactory approach to the problem of sexual harassment: It's slow, less investigative than litigation, and some important remedies, like punitive damages, are generally unavailable. Several lawyers told THR that victims are much better off in court.

SAG-AFTRA says it could pull the cast from an abusive set under contract provisions requiring safe working conditions, but that appears to have been done infrequently if at all. Union contracts also contain somewhat weaker nondiscrimination provisions and don't explicitly address harassment at all, but they should. The question still becomes how to sort out true complaints from false ones and how to avoid lawsuits against the union itself by alleged perpetrators who may be — or claim to be — falsely accused. Brett Ratner, for instance, accused by six women, is suing a seventh for libel.

SAG-AFTRA already has a 24/7 safety hotline that can be used for sexual harassment complaints as well as more conventional safety matters. But many complainants want to stay anonymous, compounding the problem of verification.

A seeming solution would be to compile a database of incidents and take action when accusations pile up against the same individual. With proper safeguards, perhaps such a database would be a useful tool. But keeping it from becoming a blacklist of unverified, anonymous allegations would be a challenge. Unions want to protect their members, but they also don't want to spend members' dues money defending against defamation lawsuits.

Also, focusing on the quantity of complaints as a proxy for truthfulness and a substitute for litigation means that a single incident, even if severe, might go unaddressed. To put the uncomfortable question concretely: If one woman (or man) claims to have been groped or, worse, raped, but — even if understandably — insists on anonymity and refuses to go to law enforcement or file an immediate lawsuit, what can a union do?

Sexual harassment and rape are terrible problems — not just in Hollywood — and such abuses reflect power imbalances that have existed for millennia. That means true solutions will have to involve all stakeholders, not just unions. As SAG-AFTRA president Gabrielle Carteris says, "We think we can all do better."