This week, Realscreen begins a new regular series of articles featuring the perspectives of entertainment lawyers on various issues impacting the non-fiction and unscripted production landscape, designed to give you the information you need to know in an increasingly complex business environment. Our first featured columnist is Reavis Page Jump partner Nicole Page.
The social changes inspired by the #MeToo movement together with tough, new anti-harassment legislation is putting a high price tag on sexual harassment claims for production companies. Employers are seeing a jump in the number of sexual harassment claims as more and more employees are asserting that “time’s up” for workplace harassment.
One result is a steep rise in Employment Practices Liability Insurance (EPLI) premiums. EPLI insurance covers sexual harassment, gender discrimination and other similar claims. Our production company clients are reporting in some cases a tripling of premium rates and deductibles from 2017.
Another, even more critical result is that the risk of being on the receiving end of a harassment or discrimination claim in states where the legislatures have made curbing sexual harassment and discrimination a priority is higher than ever.
Public education and awareness around sexual harassment has proliferated with the now familiar stories of powerful men in media taken down by mounting allegations of sexual misconduct and the use of power to prey on victims (see, e.g., Harvey Weinstein, Matt Lauer, Les Moonves, Kevin Spacey, Louis C.K., etc). The landscape is changing as are the standards for what is acceptable workplace behavior.
My recommendation to production companies: don’t be passive in the face of these changes.There are several steps employers can and should be taking to create workplaces where harassment and discrimination are not tolerated. In striving to achieve that goal, you not only minimize your risk of litigation, but if you do get sued, defending against a lawsuit will be much easier if you are operating your company in line with best practices.
It’s impossible to prevent all lawsuits — there may always be a disgruntled employee who misuses the legal system in an effort to extract a monetary settlement. But what you can do is structure your company in such a way that when a suit is filed, you can contain and limit financial and reputational damage.
In addition, following best practices can help keep EPLI premiums and deductibles in check as insurers will want to know if appropriate policies are in place and steps are being taken to provide anti-harassment training and an effective harassment claim reporting structure.
When we advise our production company clients about these matters, we routinely suggest the following:
1. Comply with “best practices”
Take harassment and discrimination prevention training seriously. In both New York and California, anti-harassment training is now a mandatory legal requirement. There are online and in-person live trainings available in both states. Many companies choose to require their employees to complete training online, which although legally compliant, may not be the most effective method of fulfilling the requirement.
In live training, employees are able to ask questions and have their concerns addressed which can lead to fuller engagement with subject matter. Because sexual harassment and related issues like hostile work environment are often complex and nuanced issues, it can be very helpful to have an expert on hand to talk through the murkier points.
Review your current employee policies and employee handbooks and make sure you have a clear and un-ambivalent anti-harassment and discrimination policy and a clear process for employees to report complaints. Lead by example. Send a strong message that unacceptable behavior will not be tolerated and that reporting a complaint will not result in any form of retaliation.
2. Diversity is key: Increase diversity and inclusivity in the office to minimize claims of harassment
Perhaps the most effective way to minimize the risk of litigation is to get to the root of the issue and build a company culture in which harassment is unlikely to occur in the first place.
The 2016 EEOC Select Task Force on the Study of Harassment in the Workplace reported that “harassment is more likely to occur where there is a lack of diversity in the workplace.” Thus, diverse workforces, where the balance of power is distributed among individuals of different genders, are less likely to promote the circumstances that lead to claims than those where the power is concentrated and women are excluded from positions of authority.
Of course, avoiding liability is far from the only benefit of diverse workplaces and not the only reason for making an inclusive workforce a priority.
As social and legal norms around workplace harassment shift, it’s important for production companies to adjust to the new realities. Not doing so is only going to get more expensive.
Nicole Page is a Partner at Reavis Page Jump LLP in New York and practices in the areas of entertainment and employment law. Nicole provides counsel for film and television production companies and her work encompasses production legal, pre-publication review and negotiation of broadcast and distribution deals. Nicole also counsels companies and individuals on a variety of employment matters including employment and separation agreements, employer legal compliance, workplace discrimination and harassment prevention and other employment matters. Nicole proudly serves as President of the Board of Women Make Movies.