In a post-Weinstein world, holding employees accountable for sexually harassing their colleagues has become a top priority for employers, but such accountability is made more arduous when the harasser is a contracted worker.
That’s especially true in the Weinstein-adjacent world of live theater.
The theater industry has a complicated structure that leads to a lot of work being contracted out, Thomas Carpenter, general counsel for Actor’s Equity, told Bloomberg Law. Actor’s Equity represents roughly 51,000 theatrical performers.
A lot of the work contracted out includes casting directors, who help vet performers who audition for parts in a show.
“They are making the short list of actors who will be seen so their role becomes very important,” Paul Mroczka said of casting directors. Mroczka is the director of the theater department at Plymouth State University in New Hampshire, but his theater experience ranges from acting and stage managing to writing, producing, and directing.
Because there are so many actors and so few roles, performers will put up with behavior that workers in other industries might not, Mroczka told Bloomberg Law.
“Years ago when I was younger, I’d see producers and directors putting the moves on actors or actresses right in front of me,” he said.
Gig Workers Add Some Complexity
And when the person who’s harassing union members isn’t covered by the union’s flagship contract, it can complicate the process of holding that person accountable.
“Our bargaining agreement is with a producer,” Carpenter said. “If that producer hires a bunch of sub-contractors, the accountability there is layered in nuance. That’s a difficulty for us sometimes.”
But it’s not impossible to achieve accountability, he said.
People often think that if the person harassing them isn’t their employer they can’t file a complaint, Victoria Lipnic, acting chair of the Equal Employment Opportunity Commission, told Bloomberg Law.
“That’s not necessarily true,” Lipnic said. Even with independent contractors, harassment can be addressed under the law, she said.
Employers may be liable under Title VII of the 1964 Civil Rights Act for harassment by their independent contractors. The liability depends on whether the employer knew, or should have known, about the harassment and “failed to take prompt and appropriate corrective action,” the EEOC’s harassment guidelines say.
Actor’s Equity has partnered with the Actor’s Fund for years to give advice to members who’ve been harassed at work. The nonprofit fund provides entertainers with financial assistance and also helps with affordable housing, health care, and counseling. But when allegations about Hollywood producer Harvey Weinstein prompted a flood of similar complaints, the union decided to hold a meeting Dec. 5 to answer members’ most pressing questions, Carpenter said.
The agenda included educating members on what constitutes sexual harassment, avenues for reporting it, the potential risks of reporting, and how the union can help mitigate those risks.
Union Versus Employer Roles
It’s important for members to understand the difference between the union’s role and the employer’s, Carpenter said. It’s the employer’s duty to create harassment prevention policies and the union’s job to ensure that the employer follows through on that duty.
“The problem is a lot of smaller theaters or producers think of themselves as an artistic venture rather than an employer with legal obligations,” Carpenter said. That’s where the union steps in. For instance, Carpenter sent an email to all the theaters that employ Actor’s Equity members, reminding them about their legal responsibility to create sexual harassment policies. Most of the feedback was positive, Carpenter said.
The most effective harassment prevention policies are the ones created by the employer, he said.
“It’s hard to change the culture of a workplace, but it’s the employer’s responsibility to do that.”
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