Weinstein may be a monster — but the lawyers who enabled him are true villains
But in “She Said,” the behind-the-scenes story of how Jodi Kantor and Megan Twohey brought down Harvey Weinstein, the lawyers finally come into view. And it’s not a pretty picture.
As a professor and employment lawyer who has followed the #MeToo movement since Kantor and Twohey’s award-winning expose in 2017, I expected their book to relay the stories of the women who publicly accused Weinstein. Of course, there’s plenty of that.
What I didn’t expect – but perhaps should have – was how central lawyers would be to their story.
Unrepentant and irredeemable
The book portrays Weinstein as a monster.
He is a predator who traps female employees and actresses in an impossible maze where every path ends in unwanted touching, indecent exposure or assault. He is a beast who punches his brother in the face at the office as other executives watch impassively. He is a bully, looming over Kantor in the lobby of the Times building. He tells her he didn’t do “the terrible things that women were accusing him of.” Then he added, “I’m worse.”
Weinstein is unrepentant and irredeemable, which in a way limits his agency over his actions. Once a monster, always a monster.
The true condemnation in Kantor and Twohey’s book – if you can call it that, since they tell the story in the third person with some journalistic reserve – is leveled at the lawyers complicit in the cover-up. For they chose to help Weinstein instead of the women he victimized.
Legal enablers
There is Lisa Bloom, whom the book describes as “a celebrity feminist lawyer and the daughter of famed women’s rights attorney Gloria Allred.”
Bloom foolishly thinks she can lecture Weinstein into changing his ways. Instead, the book suggests that Weinstein has the upper hand, by cutting a deal to produce a miniseries based on her book, “Suspicion Nation.”
There is Weinstein’s longtime lawyer, David Boies, who was also entangled in business dealings with Weinstein. In 2002, Boies persuaded the New Yorker to scrap an article on Weinstein claiming the “women were lying in order to milk Weinstein for money.”
Then in 2017, Boies negotiated a secret deal with an Israeli investigation firm to “stop publication” of the Times story, in exchange for a US$300,000 bonus from Weinstein. However, Boies was also representing the Times in unrelated litigation, which promptly fired him when it learned of the conflict of interest.
And there is the hapless Lanny Davis, a lawyer turned crisis counselor. Davis prodded the journalists for information on their investigation, claiming it would help him “answer your questions and make sure they’re true.”
He was also an apologist for Weinstein, explaining that “powerful men of an older generation were changing their understanding of the meaning of the word consensual.” But Davis would inadvertently provide a key piece of information to the journalists, admitting that Weinstein had entered into “eight to 12” legal settlements.
Secret settlements
Kantor and Twohey do not spare plaintiffs’ lawyers from scrutiny either.
Most notably, they reference the secret settlements Gloria Allred and her firm negotiated in explosive cases over the years – including one involving Weinstein. The book also implicates the many other unnamed lawyers who pushed their clients to accept secret settlements in the $100,000 range.
While standing in his driveway, the unknowing husband of one Weinstein victim points to the modest house behind him, insisting, “Do I look like a man whose wife got a settlement?”
The morality of lawyers
The only lawyer spared from judgment is The New York Times’ own in-house lawyer, David McCraw.
He responds to a blustery cease-and-desist letter from Weinstein with the assurance that “any article we do will meet our customary standards for accuracy and fairness.” Kantor and Twohey’s article runs the next day.
The book raises important questions about the extent to which the legal profession was complicit in concealing conduct like Weinstein’s over the years. While the lawyers in the book are caricatures, their more banal counterparts – lawyers like me who once routinely inserted confidentiality provisions into settlement agreements – are no less complicit.
Unlike journalistic ethics, which is steeped in tradition and reinvigorated when applied, legal ethics rules are codified in state law. As a result, lawyers need not agree upon, or even examine, the moral component of what they do.
A lawyer’s general duty of loyalty as applied to a bad client like Weinstein can be fulfilled in a variety of ways. You might use the David Boies strategy of plowing forward despite the facts, or try Lanny Davis’ approach of limiting the fallout. Lisa Bloom’s attempts to lecture her client can sometimes work, though it becomes a form of rationalization once it’s clear your client won’t change. The last option is to just fire your client, which other Weinstein lawyers might very well have done.
Lost in the reflexive shuffle of legal moves is the broader question that Kantor and Twohey ask again and again: why “no one had ever stopped this man.” In the end it would be journalists, not lawyers, who would hold him to account.
Elizabeth C. Tippett, Associate Professor, School of Law, University of Oregon
This article is republished from The Conversation under a Creative Commons license. Read the original article.
Sexual Harassment Prevention Used to Target Abuses of Power Like Harvey Weinstein - What Changed?
A female employee would be invited to some nonwork location on a professional pretext (here, Weinstein’s hotel suite). Then the man would proposition the employee, and the woman would try to escape. The similarity to Weinstein’s alleged misdeeds end there, however, as harassment training generally wouldn’t depict actual sexual assault or a man emerging naked from the bathroom.
While these early harassment videos for the most part feel very dated, particularly in terms of the roles women tended to occupy, they actually offered a more complex depiction of sexual harassment than we see in current HR training sessions. Steeped in an environment of overt subordination, the older videos understood that sexual harassment, first and foremost, was an abuse of power that limited women’s employment opportunities in the workplace. Newer training, not so much.
Likewise, the accusations swirling around Weinstein risk morphing into just another tawdry sex scandal, rather than an indictment of the discriminatory Hollywood employment practices they represent.
I recently completed a study examining the content of harassment training programs from 1980 to 2016, which hadn’t previously been the subject of scholarly research. Older training materials are a reminder that harassment – like the Weinstein scandal itself – isn’t about sex so much as discrimination, inequality and power.
Sexual harassment and power
The harassment training industry got its start in the early 1980s in response to guidance from the Equal Employment Opportunity Commission, the federal agency responsible for enforcing Title VII of the Civil Rights Act.
The EEOC took its inspiration not from case law but an influential book by scholar Catharine McKinnon that recounted how sex was used to subordinate women in the workplace. The EEOC thus defined harassment in terms of sexual conduct, referring specifically to “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.” It argued such advances were unlawful when used to make employment decisions or when they unreasonably interfered with an employee’s work performance.
My study compared a small collection of 18 historical harassment videos and other training materials found in libraries to 56 more recent examples collected from law firms, professional trainers and public sources. I included the older methods as a baseline of sorts to understand why current practices look and feel the way they do.
Because the early materials were structured around EEOC definitions, they were all about sexual harassment and tended not to address other types, like racial or religious harassment.
In these early videos and other documents, sex and power were closely intertwined. Women were depicted answering the phone for important men who viewed them only in terms of their appearance.
This may be why the Weinstein story seemed familiar to me – it takes place within an industry where white men largely still control the levers of power, and everyone else is subordinate or invisible.
Early training videos portrayed sexual demands as a tax levied primarily on women in lower-level positions. Similarly, in Weinstein’s orbit, a talented male actor could get a part simply through casting. Women, meanwhile, had to pay extra.
Early training practices also understood that harassment does not require sexual attraction. It can just be another tool to exclude and marginalize. One early trainer described such behavior as a “malicious power play” where “on the surface, the behavior is about sex but the real behavior is anger, fear and power struggles.”
This too resonates with the Hollywood of today. Actor Terry Crews, who is African-American, recently reported that he was groped by an unnamed executive at an industry function.
The meaning of the assault was plain enough. This room is mine. You don’t belong.
Today it’s about civility, not rights
Many topics covered in the earliest harassment training are still covered today.
Current training continues to devote a disproportionate amount of content and attention to sexual conduct, even as the Supreme Court has moved away from the original EEOC definition and litigation has shifted to other types of harassment, such as race and religion.
Current training methods also frame sexual conduct differently. They lack the rights-based subtext that animated earlier practices. They still depict supervisors hitting on subordinates. But they also portray milder conduct that may not meet legal definitions of harassment, like marginally offensive compliments from the delivery guy.
Today, harassment is seen as less about rights and more about civility. Violating the company’s harassment policy is portrayed as a stigmatizing faux pas, like wearing cargo shorts to a court appearance or farting in an elevator. It might have seemed like a fun idea at the time, but you really should have known better.
In decoupling sex from equality, trainers somehow forgot the equality part and now rarely emphasize that the animating principle behind harassment law is to secure equal employment opportunity in the workplace. They remind employees not to make sexual or race-based comments at networking events but omit the importance of including women or people of color at the events in the first place.
As Yale Law professor Vicky Schultz argues, employers like to focus on sexual conduct because it’s convenient. It’s far easier to prohibit dirty jokes than to grapple with the complex barriers that women and other underrepresented groups face in the workplace.
Losing harassment in the sex
Hollywood’s condemnation of Weinstein was swift. He was fired from his own company and booted from the Academy of Motion Picture Arts and Sciences, which issued a statement saying that the “the era of willful ignorance and shameful complicity in sexually predatory behavior and workplace harassment in our industry is over.”
It was the right thing to do. But the academy’s promise not to be complicit in harassment is a low bar indeed. It does nothing to address the employment practices that led to an industry largely controlled by white men.
Like modern harassment training, it’s just too tempting to address the easy problem at the expense of the harder problem and the bigger picture. Hollywood is an industry where women make up only 7 percent of directors on the largest films. Where Asian actors like Aziz Ansari and John Cho are asked to play stereotyped ethnic roles with an accent. Where “Breaking Bad” actor Giancarlo Esposito was turned down from scheduled auditions when casting directors discovered he was black.
This ultimately relates back to Weinstein, who would not have been able to do what he did, for as long as he did, in a Hollywood where opportunities are more fairly distributed among those with compelling stories to tell.
This article has been updated to correct the name of the organization that ejected Harvey Weinstein from its ranks.
This article was originally published on The Conversation. Read the original article.
Uber's Dismissive Treatment of Employee's Sexism Claims Is All Too Typical
In a blog post, Susan Fowler described being propositioned by her supervisor within weeks of starting her job. She complained to the human resources (HR) team. According to Fowler, the supervisor received a “warning and a stern talking-to” but no other discipline at the time because he was a strong performer and it was his “first offense.” Uber then offered her a choice: Transfer to another team or stay and risk a retaliatory performance review from the harasser.
Fowler also described a larger pattern of harassment, discrimination and retaliation. Others reported being harassed by the same manager, apparently contradicting what HR told her. Fowler’s performance review was downgraded, making her ineligible for a subsidized graduate program. When Fowler asked a director about “dwindling” representation of women in the division, he attributed it to their failure to step up and be better engineers. When Uber ordered leather jackets for engineers, they were ordered only for men. Apparently, there weren’t enough women to qualify for a bulk discount.
Fowler complained repeatedly. HR responded with escalating indifference, ultimately suggesting that Fowler herself was the problem.
After Fowler’s post went viral, Uber sought to distance itself from the incident and hired former Attorney General Eric Holder to investigate. CEO Travis Kalanick issued a response:
“What she describes is abhorrent and against everything Uber stands for and believes in.”
Fowler’s story – which Uber neither confirmed nor denied – is not unique in the tech sector, where women remain underrepresented. Women make up only 12 percent of engineers. These women face substantial headwinds. In a survey of women in the tech sector, 84 percent reported being told they were “too aggressive” and 59 percent said they were offered fewer opportunities than male counterparts. The majority also reported receiving unwanted sexual advances. And of those that reported the harassment, 60 percent were unhappy with the company’s response.
The Uber story provides a window into how companies have developed HR infrastructure to address anti-discrimination laws. These structures occupy a marginalized status within organizations.
As I learned while working as an employment lawyer at a large law firm, legal mandates rarely disrupt business objectives. Instead, they are largely viewed as an inconvenience delegated to HR. That explains, for example, why the CEO learned about Fowler’s allegations only after they went viral.
Symbolic structures
Title VII of the 1964 Civil Rights Act safeguards an employee’s right to equal opportunity in the workplace.
It initially protected an employee against discrimination in hiring, pay, promotion and termination. Courts later expanded definitions of discrimination to include harassment. Title VII also protects employees from retaliation for complaining about discrimination or harassment.
As sociologist Lauren Edelman documents in a recent book, employers responded to civil rights laws by setting up complaint processes for employees. She argues that these processes are less focused on meaningfully assuring equal opportunity and more about creating the appearance of compliance.
The ‘first bite is free’
According to Edelman, courts have become complicit in this development, crediting employers for superficial procedures without assessing whether they actually work.
The Supreme Court’s decision in Faragher v. City of Boca Raton is a case in point. The case gives employers a defense in harassment cases if they took reasonable measures to prevent and correct harassment and the victim unreasonably failed to make use of internal complaint mechanisms.
However, courts don’t require employers to do very much to satisfy the defense. Merely adopting and distributing a policy gets an employer credit, as does adopting an investigation process. Courts do not require employers to take strong disciplinary action against the harasser. Rather, they need only take action reasonably calculated to stop the harassment – even if it does not.
In theory, a plaintiff would still have a viable claim if they used the employer’s complaint procedure. But one empirical study found that even short delays in reporting the harassment can be considered “unreasonable” on the victim’s part. So if a victim waits a few months to report the harassment, and the employer goes through the motions of investigating and responding, the victim may be out of luck.
This doesn’t give employers much of an incentive to crack down on harassment. As one scholar observed, it essentially allows employers to escape liability for a harasser’s first offense. In other words, the “first bite is free.”
This helps to explain Uber’s underwhelming response to Fowler’s initial complaint. Uber wasn’t really on the hook for the “first report” and did not have a strong incentive to punish the harasser. For Fowler’s harasser, that meant a “warning and a stern talking-to.”
It’s just a ‘business decision’
Lauren Edelman’s research also documented a tendency among HR and lawyers to characterize civil rights obligations as “legal risks.”
This is consistent with how I talked to employers when I worked as an employment lawyer. I offered advice on “legal risks” while they were tasked with making “business decisions” on how to proceed.
However, this frame ultimately treats legal rules as one of many factors to take into account (or ignore) when employers make important decisions.
Consider Fowler’s situation. Uber evidently considered Fowler’s harasser to be an economically valuable employee that might be difficult to replace. Transferring the harasser to another team or terminating his employment likely would have been costly. By contrast, offering Fowler a transfer seemed a cheaper alternative, notwithstanding its effect on Fowler and the increased litigation risk.
When framed as a business decision, companies have a tendency to displace the victim of the harassment to preserve the profits associated with a high-flying harasser.
Swatting mosquitoes while ignoring the termites
Fowler’s allegations of sexual harassment have received a lot of press attention, but in many ways her allegations of systemic discrimination and retaliation were more troubling.
The director’s comment that women weren’t stepping up. The altered performance evaluation that cost Fowler a spot at grad school. The leather jackets.
HR was even less responsive to these complaints than to the harassment allegations and blamed the problem on Fowler herself. Why? They may not have believed her. But HR may have been limited in its capacity to fix the underlying problem. Yes, it could have paid for the leather jackets, addressed the doctored performance evaluations or scolded the director for his sexist comment.
But HR, on its own, is poorly situated to fix a business culture that is indifferent to (or in denial about) offering meaningful opportunities for advancement to women or other minorities in the workplace. As political scientist Frank Dobbin has argued, human resources professionals have long struggled to establish their legitimacy within organizations. They are rarely the locus of power within corporations, which instead resides in revenue-generating departments like engineering and sales, and in the executives that preside over the business.
HR advises. Business decides.
Rooting out discrimination
Business leaders make a Faustian bargain when they outsource civil rights compliance to HR and lawyers. They gain credible symbols of compliance. But they also lose touch with a business identity that includes doing right by their employees. As Mary Gentile argues in her book, “Giving Voice to Values,” we lose touch with our shared values when we define work roles too narrowly.
In retrospect, Uber’s decision to side with the harasser over Fowler was a bad business move. All the bad press has reinforced existing narratives of Uber as a bad actor. But the decision was also – to use a word that has fallen out of favor in the business vernacular – wrong.
Until business leaders view themselves as guardians of civil rights, those rights will continue to be framed as a tax on profits rather than important values to uphold.
This article was originally published on The Conversation. Read the original article.
Trump Snubs Ethical Norms Because We've Forgotten Why They Matter
The president-elect knows this. In fact, he’s banking on it.
Instead of addressing his conflicts in a meaningful way at his press conference last week, Trump pointed to a stack of folders behind him. He then turned the press conference over to a lawyer, who talked about Trump’s plans for long enough for viewers to lose interest. It sounded official and complicated, even though it’s an embellished version of his November announcement to turn the business over to his children.
Many condemned Trump’s plan to handle his myriad conflicts of interest as president as wholly inadequate, including the director of the U.S. Office of Government Ethics.
But most likely, Trump will get away with it – for now – and continue to ignore the warnings of government ethics officials, tasked with preventing things from going terribly wrong.
For decades, they’ve been so successful at preventing a major government ethics scandal, Trump’s conflicts of interest now seem academic and even soporific to the average voter. Unfortunately for Trump, his unwillingness to listen makes a disaster much more likely. On the upside, a scandal would at least remind Americans why ethics-based precautions matter.
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Owning is knowing
Trump’s plan consists of handing management of the family business to his sons, Don and Eric, and a current Trump executive. Trump pledges not to discuss business with his sons.
Trump will not be divesting his golf clubs, commercial properties, resorts, hotels or royalty rights. The plan also provides for no “new” foreign deals, though new domestic deals will be permitted subject to a “vetting process.” Existing foreign and domestic deals will presumably continue.
Walter Shaub, who directs the Office of Government Ethics, condemned Trump’s plan as “meaningless.” Turning over management of the business to others – especially his own children – is not a “blind trust” because Trump “knows what he owns.” Trump’s own attorney used this fact as an argument that nothing could be done about the conflict.
Shaub disagreed. If Trump divests his assets and places them in a blind trust – meant to prevent an elected official from making decisions that would benefit his or her own business interests – he won’t know what he owns. The independent trustee would make decision about selling assets and which assets to buy in their place. Under the government’s standard blind trust agreement, the trustee wouldn’t tell the president which assets are in the trust.
Much ado about nothing?
Nevertheless, Republican Representative Jason Chaffetz called Shaub “highly unethical” for publicly criticizing Trump’s plan.
It’s certainly unusual, but, as with all things Trump, we’re in uncharted waters.
For some Trump supporters, all of this ethics criticism feels alarmist and exaggerated. One explained to me that these conflicts of interests are all hypothetical and abstract. Nothing terrible has happened yet. He argued that Trump’s potentially problematic behavior thus far – like his business-related inquiries of the Argentinian president or complaints to Brexit leaders about wind farms near his golf course – is small potatoes compared to other national priorities.
This reaction is understandable. It’s hard to imagine a giant presidential ethics scandal because there hasn’t been one since the Nixon administration. Why worry?
Anyone in the business of prevention understands this challenge. In “The Black Swan,” Wharton scholar Nicholas Nassim Taleb described the most “mistreated heroes” as those “we do not know were heroes, who saved our lives, who helped us [by] avoid[ing] disasters.”
Taleb presents the thought experiment of a hypothetical legislator who passed a law requiring that cockpit doors be locked as of Sept. 10, 2001. Yes, the legislator would have succeeded in preventing a terrorist attack. But he would also erase the proof that his legislation was valuable.
In the business of prevention, the benefits are hypothetical and the costs are real. The diseases prevented by vaccines have become so rare that they have reached the status of a hypothetical threat. Some parents now decline vaccines based on ephemeral fears because the benefits have become even more ephemeral.
William Ruckelshaus, a Republican and the first Environmental Protection Agency administrator, summed up the problem nicely:
“During the late ‘60s, the early ‘70s … [y]ou could see the air pollution on your way to work in the morning. When I first moved to Washington, the air was brown, mostly associated with automobile emissions. We had rivers that caught on fire like the (Cuyahoga) going through Cleveland, Ohio. …today it doesn’t galvanize as much public demand that something be done as was true back in the 1960s. EPA is a victim of its own success. A lot of the changes in the air and the water have been a result of a pretty vigorous agency going after polluters.”
Make ethics great again
Conflicts of ethics rules serve as preventative measures, as Shaub pointed out.
Blind trusts make conflicts of interest impossible because government officials both no longer have control of the assets and don’t know what they are. It is impossible to be influenced by ownership of an unknown asset.
All of the presidents since the Watergate scandal have acted as though the Ethics in Government Act of 1978 applied to them, even though technically it doesn’t.
In a sense, the entire Executive Branch has been vaccinated against conflicts of interest for the last 40 years. That is until now, with an incoming president who stated repeatedly during his press conference that conflict of interest rules don’t apply. So maybe we’re due for a scandal?
Sometimes, retrenchment can be helpful to the cause of prevention. In 2015, a measles outbreak at Disneyland led to an increase in vaccination rates. Trump’s unprecedented conflicts of interest could do the same for Washington, spurring a renewed push to bind the president to higher ethical standards.
At it stands, Trump’s failure to address his conflicts means that he remains exposed to the possibility of a full-blown conflicts-of-interest scandal. All it would take is for President Trump to have another conversation with British politicians about those pesky wind farms near his golf course in Scotland, this time from the Oval Office.
Yes, it would be a blow to the office of the presidency. But on the upside, it would – to borrow the president-elect’s favored phrase – make ethics great again.
This article was originally published on The Conversation. Read the original article.