On June 13th, 2018, the Ontario Bar Association (OBA) Entertainment, Media & Communication Law section, in collaboration with the Labour & Employment Law section, held a panel , addressing sexual harassment in the entertainment industry. Chaired by Roselyn Kelada-Sedra of Sabsay Lawyers and moderated by Alexi Wood of St. Lawrence Barristers LLP, the event featured 3 expert panelists: Jane Angel, General Counsel for the Canadian Film Centre; Stuart Rudner of Rudner Law; and, Victoria Shen, Special Advisor on Human Rights and Sexual Harassment for ACTRA Toronto.
At the centre of the event were the high profile sexual harassment allegations that have permeated our culture for the past year. The events following the #MeToo and #TimesUp movements were at the forefront of discussions surrounding how to handle sexual harassment allegations in our current cultural climate. The allegations against Harvey Weinstein, in particular, were noted as a pivotal moment in how we deal with these claims.
Stuart Rudner started the event with a presentation on dealing with the issue of sexual harassment in employment law. He laid out the basics of what constitutes sexual harassment and discussed the importance of the Jian Gomeshi case in the history of the #MeToo movement. Rudner suggested that while Gomeshi signalled a regression in the way the public viewed sexual harassment claims, the allegations against Harvey Weinstein represented a 180 degree change, practically overnight. Bill 132, implemented one year before the public disgrace of Weinstein, expanded the definition of workplace harassment to include sexual harassment. Rudner explained how this created new obligations for employers surrounding programs and confidentiality. Rudner went on to stress the importance of the duty to investigate sexual harassment claims thoroughly.
The program continued with a presentation by Victoria Shen. Shen discussed the impact of the Harvey Weinstein allegations on ACTRA unions and the consequences which followed. There are many things to consider when addressing the shifting climate. It is important to remember that there remains a duty of fair representation to prevent arbitrary actions. In order to deal with the shifting climate, Shen stressed the importance training, education and a complete review of policies within organizations. All of this boils down to a need for either a conscious re-assignment or increase in staffing.
Importantly, Shen addressed the question: what standing does a union have in these situations? The nature of the entertainment industry itself is that collective agreements and steady work are rarely afforded to members of ACTRA. This makes the issue of unions and standing in legal proceedings challenging. Shen suggests that an industry-wide policy response should be put in place to effectively tackle these issues.
Jane Angel concluded the panelists’ presentations by speaking to the vulnerabilities and power imbalances that often occur when sexual harassment allegations arise. She spoke from the view of in-house counsel at the Canadian Film Centre, where she has experienced a definite shift post-Weinstein. Angel suggested that in order to deal with these allegations, we must acknowledge the legal obligation to provide a safe workplace for all workers. This includes staff, resident artists, faculty, artist mentors, and volunteers. Weinstein presented the entertainment law industry an opportunity to revise policies. Angel stressed the importance of properly prepared policies with regard to confidentiality and potential for reprisal, as a crucial part of ensuring compliance. She stated that the goal of these changes to policies is to protect the corporate clients and to provide a healthy environment.
Throughout the event, each panelist stressed the importance of the investigation process. The proper execution of an investigation cannot be understated. Timelines, fairness, and transparency, while protecting confidentiality, are all key factors in protecting corporate clients as well as advocating for clients who have experienced sexual harassment.
The event concluded with a question period which led to interesting discussions surrounding the role of employers and the role of social media in sexual harassment claims. In response to a question regarding what employers can do to ensure they are both compliant and fair, Angel stated that healthy corporate culture starts at the top. Corporations must incorporate annual performance reviews of all staff and provide management training in order to ensure compliance with the policies. Shen mentioned the importance of having someone that people will feel comfortable going to on the complaint side. Young women, in particular, often experience incidents and feel uncomfortable reporting them. As they pile up, undisclosed, these incidents become a much larger issue. Eventually, we experience the mass of women coming forward that has led to #MeToo. Stuart stressed that the policy and practice within an organization must match.
Social media has played a large role in the dissemination of information over the past year in sexual harassment cases. When asked about exactly what role social media plays, the panelists shared differing views. Rudner stated that clients often want to go to the media, and that it can be strategic. It is possible to use social media in your favour when done adeptly. Shen pointed out that defamation advice should be given to those who are speaking to the media. It’s difficult when the case involves evidence relying on credibility, as that can be challenged when speaking to the media. Additionally, public shame as a method to bring on justice is something that is challenging for a lawyer. From a union perspective, you do not want to silence any of your members. In the same vein, Angel mentioned that there should be open communication between the members of the union and the media so long as there are no issues with defamation.
However, this must be balanced properly. There is something to be said about the power for a victim of making a claim public. It takes courage to do so, and there should be a push toward allowing the voices of victims to be heard. The issue rests in the fact that you cannot control what the media will do with the information once it is out there.
Over the course of the event, it was clear that the Harvey Weinstein allegations and the events that followed have real, practical and legal implications for Canadians. We are facing a challenging time in the evolution of these issues. The world will be looking on as lawyers face these challenges. In the meantime, the intersection of the entertainment industry and the legal field play out on a global scale through the lens of the media.