Cosby-Weinstein-Toback: entirely predictable
Around 1992, a year after the Anita Hill-Clarence Thomas hearings, the entertainment industry scrambled to make it look like it was doing something about sexual harassment. The industry instead of actually doing something held a conference on sexual harassment to tout what it was supposedly doing instead of actually doing anything. I was in attendance representing the San Fernando Valley Northeast Los Angeles chapter of the NOW. What I learned at that conference made the current allegations against Bill Cosby, Harvey Weinstein, and James Toback entirely predictable.
“Cosby has been the subject of sexual assault allegations, the earliest of which date back decades; those allegations did not become highly publicized until 2014. More than sixty women have accused him of rape, drug facilitated sexual assault, sexual battery, child sexual abuse, and sexual misconduct.”–Wikipedia.
“In October 2017, The New York Times and The New Yorker reported that more than a dozen women accused Weinstein of sexually harassing, assaulting, or raping them. Many other women in the film industry subsequently reported similar experiences with Weinstein, who denied any non-consensual sex. As a result of these accusations, Weinstein was fired from his production company, suspended from the British Academy of Film and Television Arts,  expelled from the Academy of Motion Picture Arts and Sciences, his wife Georgina Chapman left him, and leading figures in politics whom he had supported denounced him. The Los Angeles Police Department opened a criminal investigation for alleged rape, and New York and London police are investigating other sexual assault allegations.”–Wikipedia.
“James Toback (born November 23, 1944) is an American screenwriter and film director. He was nominated for the Academy Award for Best Original Screenplay in 1991 for Bugsy.
On October 22, 2017, the Los Angeles Times reported that 38 women have accused Toback of sexual harassment or assault. Four days later, Los Angeles Times reporter Glenn Whipp stated on Twitter that a total of 310 women had contacted him regarding incidents of sexual harassment involving Toback.’–Wikipedia.
Lilavati Sharma was a secretary at the time of the conference in the office of the Screen Actors Guild (SAG). Years later when I met Lilavati, she told me that she had been abruptly placed on one of the panels at the conference about what the union/guilds in Hollywood were doing to combat sexual harassment. They needed a statement and they needed a woman to present it but none of the union officials wanted to take ownership of the statement or be responsible for its contents. Late the night before the conference they drafted a statement of what they were supposedly doing and got it to Ms. Sharma to read at the conference.
One panel discussion included the two female heads of HR respectively for MCA and Universal Studios. Sheila Kuehl, herself a former actress having played Zelda in the Dobie Gillis series, and then a lawyer heading the Women’s Law Center in her own right was also on that panel. The representatives MCA and Universal, astonishingly admitted that their policy was to counsel women victims of sexual harassment on how to cope with it because transferring the male perpetrators of the offense was usually too disruptive to the workplace. Following this panel discussion fellow NOW member Pat Jones and I confronted Sheila who basically rolled her eyes, sharing the disgust that we experienced from these comments.
That these were the actual policies and procedures of MCA and Universal were graphically illustrated to me when years later I would investigate a sexual harassment lawsuit against them. In one of those small world events I found that the multiple sexual harassers of my client had repeatedly been sued in the past along with MCA and Universal. I had long heard that formerly Marxist high school activist Mark Wasserman and had since become a union busting/sexual harassment defending corporate attorney and sure enough he had been one of the lawyers defending the sexual harassers in the past litigation. I mentioned this in passing in my prior blog at http://janbtucker.com/blog/2011/11/12/tristanism-acunism/.
In 2002 I wrote what became the 2002-2003 California legislative session AB 1617 introduced in the legislature by assemblywoman Cindy Montanez. This was an effort to put teeth into the laws against sexual harassment. It failed because of staunch opposition by the business community; the Chamber of Commerce and other business organizations threatened Cindy’s staff that they would shut down her office with round-the-clock telephone calls if she even tried to get the bill up for a committee vote.
I am ready to take another stand at getting the principles of AB 1617 into California law. Following is the information sheet that my NOW chapter had originally created for AB 1617 and a rewritten version of what I want in the wall which takes into consideration my experience with the investigation of sexual harassment since then.
AB 1617 fact sheet
AB 1617 – (Cindy Montanez, D-39th AD) Workplace Harassment Investigation & Employee Discipline Fact Sheet
(NOTE: AB 1617 DID NOT PASS. Since then however, we have garnered the support of California and National LULAC, League of United Latin American Citizens, in our effort to revive its provisions)
AB 1617 will insure that in-house investigators or licensed investigators who are hired to investigate harassment in the workplace are competent to do the job, independently, and objectively, as mandated by California case law. Whether they are or not will be “considered” in determining whether the employer response to a complaint of harassment was reasonable. Likewise, the law sets forth a variety of employer responses to the remedy of workplace harassment, mandating only that those issues be “considered” when an evaluation of the reasonableness of the response is made.
What AB 1617 does not do:
There is no employer mandate to hire an outside investigator
There is no mandate that the employer use any particular type of remedy for harassment (but specific employer remedies will be “considered” in determining the reasonableness of the action)
There is no mandate that an employer use a competent investigator (but the employer’s use of one or non-use of one will be “considered” in determining the reasonableness of the investigation)
Bill Sponsor: San Fernando Valley/Northeast Los Angeles Chapter of N.O.W.
Confirmed Support: Alameda Corridor Jobs Coalition, California NOW, San Gabriel Valley/Whittier Chapter of N.O.W., California Association of Licensed Investigators, Los Angeles South Chapter of N.O.W., Sonoma County Central Committee of the Peace & Freedom Party, League of United Latin American Citizens; Bay Area Chapter 9 to 5; National Center for Lesbian Rights
The Need for Legislation
Existing law [Section 12940(j) Government Code] requires that employers take all “reasonable” steps to prevent harassment in the workplace, but nowhere is there a statutory definition of “reasonable.” Irresponsible employers have exploited this lack of definition to do little or nothing, which only leads to a burden on the taxpayers when their failure to stop harassment leads to the filing of charges with the federal EEOC and the California Dept of Fair Employment & Housing. There is an additional burden to the court system when those charges are not administratively rectified and the victim sues. In some cases, the alleged perpetrator sues, contending wrongful termination because of an incompetent or unreasonable investigation or that the remedy imposed was not properly justified.
A body of law has built up both outside and inside California detailing what went wrong with some investigations [See Valdez vs. Church’s Fried Chicken, Inc., 683 F.Supp. 596 (Western District, Texas, 1988), Fuller v. City of Oakland, 47 F 3rd 1523 (9th Circuit, 1995), Kestenbaum v. Pennzoil Co., 108 N.M. 20, 28, 766 P.2d 280, 288 (1988) Llewellyn v. Celanese Corp., 693 F. Sup. 369 (Western District of North Carolina, 1988). A seminal California Appeals Court case, Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 76 Cal.Rptr.2d 382 detailed what went right with an investigation and the appropriate remedies taken.
One of the effects of Silva was to protect responsible employers, like Lucky Stores, who took their responsibilities under law seriously and conducted independent, objective, and fair investigations. The effect of the case on irresponsible employers has been to make them go through the motions of an investigation and then engage in the same kind of remedies that they always used anyway, usually, one of several actions short of actual discipline of a harasser. Typical irresponsible employer responses include transferring the victim to other duties or changing his/her working hours (often disrupting their child care arrangements or reducing their income) or giving the perpetrator a better job to avoid the perpetrator filing a frivolous lawsuit. These are not legally permissible actions because they do not impose actual discipline: Intlekofer v. Turnage, 973 F.2d 773, 777 (9th Cir. 1992) held that the employer “must take some form of disciplinary action” to prevent harassment from occurring.
Another effect of Silva was for irresponsible employers to rely upon incompetents to perform their investigations. In many cases, a manager with no experience at investigation is used. Since their only concept of how to perform an investigation is usually what the see on television in NYPD Blue or Law & Order, rather than reasonable fact-finding exercises, these efforts tend to turn into hostile environments for the victim as well as the perpetrator and serve no legitimate purpose.
Silva also spurred a cottage industry of unlicensed Human Resources Consultants masquerading as experienced and competent investigators, especially for sexual harassment investigations. Their haphazard inquiries have lead to an increasing record of fiascoes for the employers themselves and generally have gotten the employers sued. The Bureau of Security & Investigative Services has issued cease and desist orders in a number of such cases for unlicensed investigative activity. Had these been situations of unlicensed people doing a proper job, they never would have come to the attention of the agency in the first place; the agency learned about them only when somebody else who was licensed, experienced and competent had to be brought in by one side or the other to clean up the mess they’d left behind.
Requiring an in-house investigator to be competent is not an unreasonable burden on a responsible employer. As one example of training available at a modest cost, the Department of Fair Employment & Housing in partnership with the non-profit Southern California Employers Roundtable (SCERT) conducted a seminar in sexual harassment investigation at the very reasonable fee of $35.00 which also included extensive reference materials. AB 1617 also requires consideration of whether the in-house or a contracted licensed investigator adhered to privacy and honesty standards which already apply to licensed investigators. The only conceivable argument against such criteria is that the employer wants to get sued.
The experience of the Bill’s sponsor and other supporting organizations is that the smaller the organization, the less likely for on-the-job harassment to be a problem that involves formal investigation. Such complaints rarely come to the attention of the Bill’s sponsor (in fact, the Bill’s sponsor, SFV/NELA NOW, knows of only one such complaint, which involved a small subsidiary office of an out-of-state corporation, in Tulare County). Every complaint ever received and processed by SFV/NELA NOW has involved a major employer for whom conduct proper investigation and remedy would not have imposed any significant economic burden.
My new legislative proposal to combat workplace harassment
Proposed new language for to fair employment and housing act appear below:
Amendments to section 12940 Government code:
(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
It is the policy of the state of California that:
(A) Employees who, in good faith, complain about harassment in the workplace should not be penalized for complaining.
(B) Employees who harass others in the workplace should not be rewarded for their misconduct.
(C) Remedies for harassment in the workplace should be effective and serve as a deterrent to future acts of misconduct.
(D) An employee’s status as spouse of an employer, supervisor, or manager should not affect the right of that employee to a workplace free from a hostile working environment; entering into a contract of marriage does not mean that a person gives up his or her right to be free from harassment and/or discrimination in the workplace or to oppose unlawful practices pursuant to California Government Code Section 12940(h).
(E) The reasonable steps required by Section 12940(j) of the Government Code to prevent workplace harassment from occurring shall include but not be limited to the following:
In determining whether supervisory employees have taken all reasonable steps to prevent harassment from occurring, the following shall be considered:
(i) Whether management personnel acted in good faith in making employment-related decisions.
(ii) Whether management employees undertook an investigation that was reasonable and appropriate under the circumstances, including a consideration of the following issues:
(iii) If the investigator was an employee of , whether the investigator was sufficiently unbiased to conduct a fair, objective, and truthful investigation and whether the investigator implemented adequate safeguards to insure employee privacy.
(iv) If the investigator was an independent contractor hired by the employer the investigator was a licensed private investigator pursuant to Article 3 (commencing with Section 7520) of Chapter 11.3 of Division 3 of the Business and Professions Code and complied with subdivisions (a) and (b) of Section 7539 of the Business and Professions Code.
(v) Whether the background, education, training, and experience of the investigator complied with industry standards of competence for the investigation of harassment.
(vi) Whether allegations of prior misconduct by the alleged perpetrator were investigated.
(vii) Whether, after the investigation and prior to taking corrective action, managers had a good faith, reasonable belief that an employee engaged in misconduct and took corrective action based on reasonable conclusions supported by substantial evidence that was not trivial, arbitrary, capricious, or pretextual.
(viii) Whether the corrective action taken by management was reasonable under the circumstances, including a consideration of the following issues:
(ix) Whether actual discipline was imposed on the perpetrator of harassment, and not merely a change in the perpetrator’s duties or working hours.
(x) Whether the supervisor changed the duties or working hours of the perpetrator or the victim.
(xi) Whether, if the supervisor changed the victim’s duties or working hours, the change was satisfactory to, and did not cause annoyance or hardship to, the victim.
(xii) Whether, if the supervisor changed the duties or working hours of the perpetrator, the change was, in fact, corrective action that the perpetrator
did not welcome.
(xiii) Whether the corrective action was reasonable in light of any past misconduct.
(xiv) Whether any prior corrective action had been ineffective in deterring the current misconduct.
(xv) Whether an alternative to the action taken by the supervisor would have imposed a significant economic burden on
(xvi) Whether the company was in compliance with section 12950.1 of the overnment code.
(F) The provisions of (E) shall not be construed to prohibit, prevent, or interfere with a supervisor’s decision to take interim measures, pending the outcome of an investigation conducted with all deliberate speed, in order to separate the person alleging harassment from the alleged perpetrator of harassment.
(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4) (A) For purposes of this subdivision only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of “employer” in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B) Notwithstanding subparagraph (A), for purposes of this subdivision, “employer” does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C) For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5) For purposes of this subdivision, “a person providing services pursuant to a contract” means a person who meets all of the following criteria:
(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently established business.
(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.
(6) (A) Any harassment which violates a person’s rights under article 1 section 1 of the California Constitution shall be deemed to be a violation of both section 12940(j) of the government code as well as section 52.1 of the Civil Code, the Bane Civil Rights Rights Act;
(B) Any harassment which violates a customer’s rights under article 1 section 1 of the California Constitution shall be deemed to be a violation of both section 12940(j) of the government code as well as section 51 of the Civil Code, the Unruh Civil Rights Rights Act;
(C) Any harassment which violates a person’s rights under article 1 section 1 of the California Constitution and which involves violence or a threat of violence shall be deemed to be a violation of both section 12940(j) of the government code as well as sections 51.7 and 52 of the Civil Code, the Ralph Civil Rights Rights Act;
(D) Fear of retaliation against a person’s right to employment constitutes fear of unlawful actions as defined in section 519 of the California Penal Code; an employer has an affirmative duty to report violations of this kind to appropriate law enforcement agencies.
Amendments to section 12965 subsection b of the government code:
(b)(1) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, shall award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees and investigative fees and costs when the investigation is performed by a licensed private investigator pursuant to Article 3 (commencing with Section 7520) of Chapter 11.3 of Division 3 of the Business and Professions Code and complied with subdivisions (a) and (b) of Section 7539 of the Business and Professions Code.
(2) if a corporate director or officer is named as a defendant in any action brought pursuant to this section for negligence it shall be deemed to be negligence per se if that officer or director breached their duties to the corporation including but not limited to their fiduciary duty, their duty of care, their duty of loyalty, and or their duty of reasonable inquiry in such a manner that harassment or discrimination was allowed to occur or to continue after they reasonably knew or should have known that it was occurring. Expert witness testimony shall be admissible to determine whether officers and/or directors breached their legal duties in this manner.