Power, Abuse, and
the Failure to Protect

“There are things I’ve done that nobody knows.”
–Harvey Weinstein.

So this past week we’ve once again learned about yet more super-sick sex abuse by an incredibly powerful man perpetrated against women, some very young and extremely vulnerable, others less so but equally as terrorized into silence. And in Hollywood—a presumably progressive milieu. By a villain who more than occasionally championed women’s causes and female political figures. And all the while, Harvey’s predilection toward victimizing women seeking entry into his industry was so widely known or suspected that it is called an “open secret.” Read the New York Times (Jodi Kantor, Megan Twohey) story  that broke the scandal, and the New Yorker (Ronan Farrow) story that delves deeper. And so now Brother Bob condemned Harvey as a generally abusive monster, and the Motion Picture Academy voted to expel him. But are these just after the fact moves to distance themselves from this open secret?

And what about The Weinstein Co.? What did it do? Sure, the Board of Directors fired him over a week ago. Harvey’s lawyer Patricia Glaser (Glaser Weil Fink Howard Avchen & Shapiro LLP,) told the Hollywood Reporter that while they hope to “work it out,” they are gonna do whatever it takes to protect Harvey’s rights vis-a-vis the Company. Good for you, Patty. I’ve been worried sick over Harvey since this whole thing broke; he’s only worth between $240M and $300M. Harvey’s Net Worth.

More to the point: What didn’t The Weinstein Co. do? Given the enormity of Harvey’s misconduct over decades, it feels trite to reduce this cultural moment down to a comment about an employer’s obligations regarding sex harassment, or a company’s (not an employer) obligations to protect third parties from the intentionally reckless misconduct of its titular head. I won’t do that, not exactly. But let’s be clear: The Weinstein Co. did not protect its employees or applicants from Harvey. I consider many of these young women at least potential applicants for employment. It had the legal obligation to ensure that they were free from unlawful sex harassment and retaliation were they to complain. It was reported that anyone who complained about his misconduct to HR was told that Harvey would be informed. Now, that’s fairly typical as part of a plan to conduct a responsible investigation followed by remedial measures. But if you know that you’re not going to do anything at all, it’s reckless behavior. This guy was super powerful in Hollywood. It’s like telegraphing the complaining women: “You are about to ruin your hoped for career.” That’s crazy. Why would we expect anyone to complain in real time?

Let’s consider what else The Weinstein Co. did. It entered into a contract with Harvey that sanctioned continued sexual harassment and abuse, so long as he paid the company liquidated damages each time he got caught. Harvey’s Contract. Yep, whenever H (let’s just call him “H,” like Hannibal Lecter) “treated someone improperly in violation of the Company’s Code of Conduct” (which is putting it mildly), the Contract obligated him to reimburse the company for any damages or settlements and also pay liquidated damages in the amount of $250K for the first instance, $500K for the second, $750K for the third, and $1M for each instance thereafter.

Can you imagine the soulless lawyers who even came up with this concept? This is legally sanctioned (at least by private contract) sex abuse: such a provision never would have been necessary had all parties not already known that H would eat alive the young women who were sent to his hotel rooms. Make no mistake about it: these are the provisions that Patricia Glaser is already arguing should have prevented her client from being fired. So yes, his misconduct was apparently a secret open enough that the Board thought it necessary to negotiate its own protection from him in his employment contract. That’s weird, disgusting, and more than questionable ethically.

I wonder whether we will ever know what shenanigans these power brokers engage in to resolve this dispute between the company and its dethroned but contractually protected abuser. I’ll bet not. Here’s something else we may never know: how many women acquiesced? Felt that it was their only choice. Gave in and tolerated whatever, just doing the very best they could. It’s very sad, what things H has done, that only he and those women know.

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The author, Peter Rutledge, is an Employment Lawyer and Partner at Rutledge Law, Greenville, SC. You can contact him via these channels:
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This guy was super powerful in Hollywood. It’s like telegraphing the complaining women: “You are about to ruin your hoped for career.” That’s crazy. Why would we expect anyone to complain in real time?

–Peter Rutledge, Rutledge Law