Guys gone wild? Companies are exposed as allegations of bad behavior make headlines

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Guys gone wild? Companies are exposed as allegations of bad behavior make headlines

Wed Aug 04, 2010 @ 10:02PM PST

By Matthew Belloni

ANALYSIS: Forget 3D movies or departing "American Idol" judges. The hottest topic of chatter in Hollywood these days might be harassment and inappropriate workplace behavior.

In the past few months, allegations of improper conduct have swept through the entertainment industry. A sexual harassment lawsuit is pending against "Bones" star David Boreanaz and 20th Century Fox Television, and two suits have been filed against filmmaker/actor Casey Affleck by women who worked on his Joaquin Phoenix documentary. Just last week, ABC topper Stephen McPherson resigned amid an internal investigation of alleged inappropriate behavior.

And later this month, a trial is scheduled in Los Angeles Superior Court between "Superman Returns" producer Jon Peters and a former assistant who claims she was harassed by, among other things, Peters exposing himself.

In each of these cases, all allegations of misconduct have been strenuously denied, and certainly, no misconduct has been proved.

Though these allegations have made their way into the public eye recently, "there are far more of these cases, but they are resolved confidentially and you never hear about it," said attorney Lisa Maki, who often represents plaintiffs in Hollywood sex-harassment claims. "You'd be shocked how often these claims are brought in the entertainment business. It's pretty rampant."

Which raises the question: Given Hollywood's often off-color creative environment and its inconsistent track record of dealing with the bad behavior of those who deliver hits, at what point is an entertainment company obligated to act on allegations of improper behavior of an employee?

The answer, according to employment attorneys, depends on the nature of the behavior and whether the alleged harasser is a manager with power over other employees.

THE EXECUTIVE

Generally, corporations like Hollywood studios, networks and agencies must treat allegations of sexual harassment by a "supervisor" (someone with authority to hire and fire) differently from wrongdoing between and among non-management employees.

Employment attorney Nancy Bertrando at Greenberg Glusker said studios can be legally responsible for a supervisor's misconduct even if the company had no knowledge of it.

"If an employee in a supervisorial position commits any act of a sexual nature that would make someone else feel uncomfortable, there is strict liability," she said. "The company has placed an individual in the shoes of the company. If they put them in that position, they should train them and be responsible for conduct that would rise to the level of harassment." (In cases involving non-managerial employees, companies are only on the hook if they "knew or should have known" about the offending behavior.)

Given that, if a network received a complaint that a top executive might be harassing one or more employees, it would have to act quickly. A company in such a situation often would conduct an objective, internal investigation or hire an outside consultant to do it.

But even if such a claim were proved to have merit, the company would not necessarily be required to fire the offending supervisor.

"The obligation of the company is only to ensure that the conduct doesn't continue," Bertrando said. "That doesn't give you a whole lot of guidance. If the lawyers think it's so bad and there's even a slight chance of it happening again, perhaps termination is appropriate. Or perhaps training or suspension or other remedial measures are enough."

The risk of keeping a known offender on the payroll, of course, is that the potential liability could skyrocket. "It's huge exposure," said Douglas Silverstein, an employment specialist who has represented plaintiffs and defendants.

"If it looks like the company was protecting the individual because they were important to the business, they're going to have much more potential liability," Bertrando added.

But the law is not crystal clear as to what constitutes unacceptable behavior.

"Simply sending dirty e-mails to people might not be harassment," another Hollywood employment lawyer said. "The speech or conduct directed at an employee must be severe and pervasive."

THE TALENT

Naturally, those who go so far as to assert sexual-harassment claims tend to go after the deep pockets of the big studios and networks, even if the alleged behavior was committed by creative talent, not executives.

Hillel Chodos, an attorney who represents plaintiffs in harassment cases, said "a director or a producer is a supervisor. The law is pretty clear that not only (are) the studios liable as an employer, but they are liable without regard to whether they are aware of the harassment."

But studios try to get off the hook in such situations, often arguing that talent are merely contractors, not managers, or that the alleged victim wasn't officially on the payroll.

In the Boreanaz case, filed last month, an extra named Kristina Hagan claims the actor sent her inappropriate text messages and engaged in explicit behavior in his car and trailer. She has named Twentieth Television in her suit, but the studio might argue that it should not be liable in part because Hagan was not an employee of the studio or producers.

THE PRODUCER

In the Peters case, his personal assistant Shelly Morita tried to include Warners-based Outback Pictures as a defendant when she sued Peters for allegedly harassing her during the making of 2006's "Superman Returns." But a judge ruled in May 2009 that Morita, who claimed she was paid half her salary by Peters and half by Outback (though that is still in dispute), could not sue Warners because there was "no evidence Outback knew or should have known of the alleged harassment by Peters," according to court documents. The decision is on appeal.

In the case of Affleck, he made the film independently, so only he and production entity Flemmy Prods. have been named in the suits, which claim that the women left the production after being subjected to repeated harassment. (Magnolia Pictures, which acquired the film and will release it in September, was not named.)

THE CHAIRMAN

There is no allegation of sexual harassment, nor any proof of a sexual relationship, but Showtime employees were dismayed recently that their boss, CBS and Viacom chairman Sumner Redstone, reportedly ordered the network to find a job for a young female friend when the companies were in the midst of a hiring and raise freeze.

Redstone's situation, should it lead to litigation and should it be proven Redstone and the woman were romantically involved, presents its own interesting legal issues.

So-called "paramour liability" lawsuits can be filed by someone passed over for a job in favor of someone with a romantic relationship with the person responsible for the hiring. These cases are rare in California, but the cause of action does exist.

"You prove it with objective evidence that the 'paramour' was receiving superior terms and conditions of employment to those who were not involved in an intimate relationship with a supervisor," Silverstein said.

So it's hypothetically possible that an employee at Showtime who feels that she was passed over could file suit -- but maybe not if she ever wants to eat lunch in this town again.

Kim Masters contributed to this report.

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to Matthew.Belloni@thr.com

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