Working on production is not your regular run-of-the-mill job.
Most people associate this line of work with long and unusual hours, lots of traveling, and the development of close relationships within the team, some of them lasting the length of the project, and some enduring for a lifetime.
Forging personal relationships within a professional environment can, in some cases, lead to uncomfortable and awkward situations.
Since the entertainment industry has had to deal with some very public and pervasive sexual harassment cases, it is crucial for production companies to invest in training for their crew to ensure a safe and healthy work environment for everyone on board.
In this post, we’ll take a look at some important laws and legal reforms related to sexual harassment in the workplace, and then we’ll offer training recommendations for production workers based on guidelines set by the various authorities.
Legal reforms in California and New York regarding workplace sexual harassment
Dealing with an evolving legal climate is challenging, however, it is pivotal to maintaining a work environment that makes the employees feel safe and respected.
The past few years have seen growth in the number of sexual harassment victims speaking out in the wake of #MeToo and #TimesUp movements.
These movements have made their way into legislation in California and New York.
These new laws are an opportunity for production companies to get better at handling the harassment issues on set, and overall within the entertainment industry.
Anti-Sexual Harassment Laws in New York
The Civil Rights Act of 1964 Title VII has already rendered sexual harassment a crime. However, developments in NY law go even further, to protect the victims of sexual harassment as defined under federal law.
The New York state law stipulates the annual anti-sexual harassment policy and training for employees to be mandatory for all employers in any company of 15 or more employees.
This is not limited to employees who are in supervisory roles. The requirement for anti-sexual harassment training includes any contract employees working with the company for a minimum of 80 hours or 90 days per year.
It is imperative for New York production companies to know that the new additions to this law increase their potential liability.
It can make the production company liable in a sexual harassment claim brought against one of their employees, whether or not the victim in the suit is also an employee of the company.
An example of this would be that if a freelancer or consultant complains of sexual harassment to the company about one of their employees, and the production house does not take immediate and appropriate action, the company will be held accountable if the complainant takes the case to court.
Anti-Sexual Harassment Laws in California
The Fair Employment and Housing Act (FEHA) provides broad protection against harassment based on multiple factors like gender, sexual orientation, medical condition, and race.
While sexual harassment training was already mandatory in California, there has been an expansion in its requirements after 2018.
All companies or production houses of five employees or more are required to hold sexual harassment training sessions regardless of the employees’ roles.
There are rules, particularly applicable to production companies, that are preventative measures to curtail sexual harassment. Some of them are as follows:
Talent agencies must inform their clients on how to prevent, report, and retaliate against sexual harassment.
The company or an individual employer may be held liable if they fail to report a sexual harassment case.
People may also be held responsible for harassment on an individual basis.
The frequency of sexual harassment incidents is not a concern. One can make a hostile work environment claim based on an isolated incident.
From a legislative point of view, factors like the place, victim’s clothing, body language or time are deemed irrelevant.
Employers must train their employees that statements like “It was a party. I wouldn’t do this at the office” are very flawed defenses.
To curb such problems, strict requirements for anti-sexual harassment training, reporting, and direct response to the reports should be set.
The requirements to ensure compliance
Here is a list of requirements for anti-sexual harassment training for companies that ensure compliance.
1. Always have an anti-sexual harassment policy that prohibits harassment and retaliation against the complainant.
2. Formulate an employee handbook that is subject to evolution to incorporate any changing state or federal laws.
3. Hold annual anti-harassment and sensitivity training sessions for your employees.
Associations tackling sexual harassment
The American film industry is comprised of independent production companies, studios, unions, guilds, associations, and talent agencies. There is a question as to who should be responsible for industry-wide sexual harassment guidelines and training. Several associations have stepped up to the challenge.
1. Producers Guild of America (PGA) anti-sexual harassment guidelines
PGA’s Anti Sexual Harassment Task Force put forward recommendations in response to a barrage of allegations that came pouring in as the Harvey Weinstein scandal unfolded.
Scroll down to check out the recommendations in detail.
2.The Alliance of Motion Picture & Television Producers (AMPTP) and the International Alliance of Theatrical Stage Employees’ (IATSE) sexual harassment training program
As part of their 2015 collective bargaining agreement, the two organizations established a sexual harassment prevention training program.
3. Association of Independent Commercial Producers’ (AICP) anti-harassment policy
AICP’s General Counselworked with attorneys Jaclyn Ruocco and Jennifer Schmalz, of the Labor and Employment practice group to craft a comprehensive memo to define workplace harassment and discrimination, and the steps employers should take to create a safe workplace.
4. Association for Electronic Music’s (AFEM)Code of Conduct
The organization’s Code of Conduct defines harassment; outlines prevention measures; what would happen if an employer failed to keep an environment free from harassment; and what it all means for AFEM members.
5. The Academy of Motion Picture Arts and Sciences’ (AMPAS) Standards of Conduct
AMPAS has a Standards of Conduct which also outlines the process for submitting claims.
Understanding sexual harassment in the entertainment industry
All-inclusive sexual harassment training requires a complete guide to identifying unacceptable behavior. Here are some of the most common types of sexual harassment in the entertainment industry.
Quid pro quo harassment
If receiving a professional benefit depends on satisfying an authority figure’s sexual demand, then it is called quid pro quo sexual harassment.
Creating a hostile environment on set
An example would be engaging in severe and/or pervasive physical or verbal actions that may harm the employee’s performance of their duties. This can also be intimidating or offensive to the workforce as a whole.
This includes making suggestive gestures, physical contact, derogatory remarks, inappropriate and offensive jokes whether in person or communicated through call or text via any medium.
It also includes sharing images that are sexually explicit and offensive.
All of the above comes under the category of creating a hostile work environment.
Sexual harassment misconceptions
There are some misconceptions regarding sexual harassment that need to be straightened out as a part of sexual harassment prevention training.
There is a difference between the civility code on set and preventative training for sexual harassment.
Civility training encompasses etiquette, diversity awareness, and cultural sensitivity. It can help foster an environment where everyone feels safe and comfortable.
For example, managing personality conflicts and non-sexual actions deemed insensitive does not come under the umbrella of sexual harassment training. It does, however, fall under civility training.
It is also worth noting that sexual harassment can be aimed at any gender, by any gender, and stands for all sexual orientations.
Sexual harassment training recommendations
According to the Civil Rights Act 1964 Title VII, sexual harassment falls under sex discrimination and violates federal and state laws.
It binds the employers to train the employees and take necessary and prompt corrective action against sexual harassment events in the workplace that come to their knowledge.
The Equal Employment Opportunity Commission (EECO) offers a list of recommendations that the Producers’ Guild of America has put forward for all production companies to use for their sexual harassment training programs.
The following is a summary:
All production companies must adhere to all federal and state laws related to sexual harassment. It is advised to hire an attorney who can help you understand these laws if you do not have a legal team on board.
Anti-sexual harassment training is mandatory for all employers, and to be provided to their entire team, including the cast and crew, before launching into production. This includes shaving a new session before starting a new season of an extended production.
This training’s objective is not to keep legal liability away but to establish a culture of respect and professionalism among peers.
Have your anti-sexual harassment training customized to the nature of your production.
Your trainer should have sound knowledge about the sexual harassment laws and must be a seasoned professional.
All management and hierarchy levels must attend the sexual harassment program to assure their commitment to the cause.
Vigilance, proactive preventative measures, and reactive steps need to be incorporated into the training’s brief.
The awareness about the matter must be an ongoing process and the training program should be updated for relevancy.
The reporting methods and points of contact on the different organizational levels should provide a victim with all the information they need to deal with an incident of sexual misconduct.
Assign two people from each gender to handle sexual harassment complaints/reports. Having multiple people to turn to will make it easier for the victim to come forward.
Practice attention and empathy while catering to the reports of sexual harassment. Behave in a way that lets them know you believe them even though an inquiry is a prerequisite. Be reassuring that production takes sexual harassment very seriously, and that reporting the incident will have no repercussions.
Employ the help of a third party to investigate and take prompt corrective actions. Be as transparent about the ongoing procedure as you can be.
The responsibility of preventing retaliation against the person who reports sexual harassment or investigates it falls upon the producer. Retaliation can have variations like a change in the production, ostracizing, transfer, or even termination.
Power dynamics are an essential factor to consider, especially in the capacity of a producer. They must make the environment of interaction safe and comfortable for everyone.
Producers must lead by example to encourage all the employees in management and supervisory roles to do the same.
Sexual harassment training protocols
The Time’s Up Legal and Legislative Policy Committee made the following recommendations a part of an anti-sexual harassment training.
Employees subject to sexual harassment should be mindful of the statute of limitations and file a report of sexual harassment to the authorities as soon as possible if they experience inappropriate sexual conduct and a hostile work environment.
Advise employees to document the incidents of sexual harassment that they have seen or experienced at work. Make notes while the events are still fresh in their mind. Create a backup; send an email of these notes to themselves or a trusted friend. Keep texts, emails, and pictures to use as evidence.
If the action does not come under the category of a crime but makes someone uncomfortable, they should first talk to the other party about what they said or did that disturbed them.
If the production has not assigned specific personnel that they could reach out to, they should file the charge with the human resource department and/or acquire an attorney’s legal services.
Suppose the producer finds out through a complaint or observation that a member of the team is facing harassment and is not talking about it directly to the offender or taking action. In that case, the producer must take the matter into their own hands and open the floor to a candid discussion with the victim and the offender.
A producer must also reprimand the offensive actions.
Resources for reporting and enforcement
As previously stated, a production company must inform its employees on how to file a report and address a sexual harassment case.
Based at the National Women’s law center, Time’s Up Legal Defense Fund provides legal assistance.
Local State Bar Associations provide free legal aid to victims of sexual harassment.
Women in Film Sexual Harassment Helpline offers a program to connect the victims to mental health professionals, law enforcement, and legal aid.
If the victim is looking to get confidential assistance in this matter, you may reach out to The Actors Fund. They offer counseling, referrals, and connect you with resources that could help the victim.
SAG-AFTRA has a sexual harassment and abuse hotline at (323) 549-6644.
A victim can contact federal agencies like the Federal Equal Employment Opportunity Commission (EEOC).
There are some concrete steps producers can take to ensure a safe and exemplary environment for the workforce.
They must lay out explicitly what is acceptable behavior and what is not. This message is the most effective when coming from top management.
Create a safe space for discussion and evaluation of the quality of the workplace environment.
Take direct actions to address the problems.
Anti-sexual harassment training is crucial to a functional and productive work environment.
It is imperative to establish protocol for when harassment might occur.
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