By: Gail Gatchalian

The Harvey Weinstein sexual harassment and assault allegations demonstrate that sexualized violence is about power, that victims don’t report because of fear, and that sexualized violence is reinforced at a societal and structural level.

Employers need to understand these features of sexualized violence in order to effectively prevent, investigate and respond to sexual harassment and assault in the workplace. Clearly, the Weinstein Company didn’t get it.

In the October 5, 2017 New York Times article, “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades”, Jodi Kantor and Megan Twohey describe how power and fear allowed Weinstein’s alleged behaviour to continue unchecked for decades. Some of Weinstein’s victims didn’t report his behaviour because there were no witnesses and they feared retaliation by him, others because they were embarrassed.

Lauren O’Connor, a former employee, wrote a scathing memo to the company about Weinstein, writing “The balance of power is me: 0, Harvey Weinstein: 10.”

In the October 10, 2017 New Yorker article, “From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories,” reporter Ronan Farrow says that he was told “by thirteen women that, between the nineteen-nineties and 2015, Weinstein sexually harassed or assaulted them…”

An Italian actor and director, Asia Argento, has only now spoken out about being sexually assaulted by Weinstein 20 years ago because she was afraid that Weinstein would “crush” her. Weinstein admitted, in 2015, to groping a Filipina-Italian model, Ambra Battilana Gutierrez.

Farrow’s report shows us that Weinstein’s alleged sexualized violence against young women was permitted, and in some cases abetted, within the workplace, in the form of silence, complicity or direct assistance from company executives and assistants:

Sixteen former and current executives and assistants at Weinstein’s companies told me that they witnessed or had knowledge of unwanted sexual advances and touching at events associated with Weinstein’s films and in the workplace. They and others describe a pattern of professional meetings that were little more than thin pretexts for sexual advances on young actresses and models.

All sixteen said that the behavior was widely known within both Miramax and the Weinstein Company.

Messages sent by Irwin Reiter, a senior company executive, to Emily Nestor, one of the women who alleged that she was harassed at the company, described the “mistreatment of women” as a serial problem that the Weinstein Company was struggling with in recent years.

Other employees described what was, in essence, a culture of complicity at Weinstein’s places of business, with numerous people throughout the companies fully aware of his behavior but either abetting it or looking the other way. Some employees said that they were enlisted in subterfuge to make the victims feel safe. A female executive with the company described how Weinstein assistants and others served as a “honeypot”—they would initially join a meeting, but then Weinstein would dismiss them, leaving him alone with the woman.

Farrow reports that “[v]irtually all of the people I spoke with told me that they were frightened of retaliation.”

On October 6, 2017, Pink Larkin hosted a training session on trauma-informed legal services in cases of workplace sexual harassment and assault, jointly sponsored by the CBA Nova Scotia Equity Committee and the Labour and Employment Law Section. The trainers were from the Avalon Sexual Assault Centre in Halifax.

We learned that:

  • sexualized violence is usually motivated by a desire for power and control rather than sexual desire or attraction;
  • Nova Scotia has the highest sexual assault rate per capita in Canada;
  • only an estimated 2.6 per cent of victims report, in part because of fear of being blamed, because of perceived shame or actual stigma associated with being a victim, or fear of retaliation;
  • women who experience intersecting forms of disadvantage, for example Black and Indigenous women, women of colour and trans women, are especially vulnerable; and
  • most sexual assaults are pre-meditated and therefore are not “crimes of passion”.

We can see all of these lessons played out in disturbing detail in the allegations against Weinstein.

Given the prevalence of sexual harassment and assault in our society, all employers are at risk of having a “Harvey Weinstein.”

Employers who are serious about providing a healthy and safe workplace for women need to understand that sexualized violence is about power, that victims tend not to report because of fear, and that society and workplace cultures can perpetuate and even facilitate workplace sexualized violence. Hiring decisions, governance, policies, training, complaint mechanisms, investigation processes, and remedial responses must all be designed with this knowledge.

For lawyers who are interested in learning more about employer obligations and liability for workplace sexual harassment and assault, whether for their own workplaces or those of their clients, I’ll be speaking about this topic along with Stewart McKelvey’s Rebecca Saturley at the Canadian Bar Association Nova Scotia Branch annual conference on Friday, December 1st, 2017 in Halifax:

#WorkLawWednesday: every second Wednesday Pink Larkin answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice.