After The New York Times dropped its bombshell investigation into decades of sexual harassment perpetrated by film producer Harvey Weinstein, and The New Yorker followed up with allegations of not just harassment but sexual assault, dozens of women in Hollywood have come forward with stories about his harassment and abuse. But until these articles were published, Weinstein faced few repercussions for his behavior.
There are a number of reasons most of these women may have decided against reporting what happened to them. Many actresses talked about their fear that Weinstein would exact retribution by blacklisting them in the industry—something some victims said they experienced simply for rebuffing his advances. They likely worried that no one would believe them or take them seriously. One of the few women who did report his behavior to the authorities, Italian model Ambra Battilana Gutierrez, even wore a wiretap and caught Weinstein apparently admitting to assaulting her, only to watch Manhattan District Attorney Cyrus Vance Jr. drop her case over what he said was lack of evidence supporting a criminal charge.
But there’s another reason actresses harassed by Weinstein may have been discouraged from reporting sexual harassment. Any who were working on a Weinstein film were almost certainly classified as independent contractors, not regular employees. And that means that the anti-discrimination and sexual-harassment protections of federal law didn’t apply to them.
It’s a problem not just in Hollywood but throughout the economy, in industries as diverse as real estate, trucking, technology, and home health care. And the problem is growing. As more companies classify their workers as independent contractors or push workers into nontraditional employment arrangements, an increasing number of people are at risk of having virtually no recourse for on-the-job harassment.
Workplace discrimination and harassment based on sex are prohibited under Title VII of the Civil Rights Act, which outlaws “employment practice[s] [that] discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” If an employee feels she is being harassed at work, she can file a complaint with the Equal Employment Opportunity Commission, the first step in taking legal action. But the catch is that she has to be an employee for Title VII protections to apply. Independent contractors, temp workers, and those employed by contracting companies are not covered under the law. “Title VII has to be related to employment,” explained Catherine Ruckelshaus, program director at the National Employment Law Project. Anyone who’s not a traditional employee can’t easily bring claims under it. “The more attenuated you get from an employment relationship, the harder it is under Title VII.”
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When a film gets made, the employer is typically a holding company, often an LLC, and the people who work on the show are rarely traditional W2 employees. “Almost everybody across the board in this industry works as an independent contractor when there’s an individual production getting made, when you work on a feature film,” explained Maria Giese, a film director who has pushed for greater gender equality in the industry. The same is typically true for those who work on theater productions or commercials. An individual actress who has been sexually harassed could try to bring a case under Title VII—but that would require her first to prove that she was illegally classified as an independent contractor and should have been an employee. She may be successful. “I don’t think that there has been an answer legislated or adjudicated” as to whether film employees should be treated like employees, said Melissa Silverstein, founder of Women and Hollywood. For example, the Equal Employment Opportunity Commission, which is charged with enforcing Title VII and would only have jurisdiction if Title VII applied, is currently investigating gender discrimination against directors at the major movie studios, with its efforts still pending.
Still, it’s a major hurdle. And if the actress can’t prove that she was misclassified as a contractor, the only option left would be to bring a contract claim between two business entities—the employer and the contractor. “Then they’re in a private contract realm where they would have to argue that the person violated their rights to operate their business in an ethical manner,” Ruckelshaus explained. “Those are really hard to bring because typically they’re very fact-based.… If you get into the he said/she said side of things, if you can’t prove the allegations of tort or contract breach, you’re out of luck.” Whereas Title VII claims just have to prove the employer allowed harassment based on sex, contract claims have to prove an employer’s intent to discriminate. “It’s very specific,” Ruckelshaus said. “Filing a lawsuit would be more difficult based on independent contractor status,” Giese agreed.
The other question that faces someone who experiences harassment in film is whom to even sue, given that the employer entities are so transitory. “Do you sue something that’s not going to be in existence, that doesn’t really have any assets?” Silverstein asked. “Which is kind of why there’s been systemic discrimination against women—because there’s no recourse.”
Many actors are in a union, so if they can’t bring a lawsuit they could initiate a grievance through their union. Unions may also include anti-discrimination and -harassment clauses in their contracts, which can serve as a way to try to deter this behavior in the first place. But unless they demand that their members be treated as regular employees when they work on set, they can’t offer additional legal recourse.
“We have an industry that faces very little oversight, and that the federal government…pretty much keeps their hands off entirely,” Giese added. She pointed to an investigation conducted by the California Advisory Committee to the US Commission on Civil Rights into gender and race discrimination in Hollywood in 1978, which found that women and people of color were facing barriers to getting ahead. Yet one of the main recommendations was to have employers and unions form a committee to come up with methods “acceptable to both parties” to increase opportunities, which Giese sees as a push to simply self-regulate.
“How many great women filmmakers and great women actresses are not in Hollywood, left because they didn’t want to compromise themselves so much or because they faced so much employment discrimination that it wasn’t worth it to stay there?” Giese asked. “We have lost, for decades and decades and decades, how many extraordinary women’s voices and women artists in our entertainment industry?”
An increasing share of workers throughout the economy is now facing the very same problems. A recent study found that independent contractors and other nontraditional employees accounted for 94 percent of all employment growth over the last decade and made up nearly 16 percent of American workers in 2015, or 24 million people. This has enormous ramifications for the workers themselves, in and outside of Hollywood. Independent contractors are not owed minimum wage or overtime pay. They can’t get workers’ compensation if they’re injured on the job or get unemployment insurance if they’re fired. Workers are on the hook for payroll taxes, insurance, and any operating costs. And, crucially for sexual-harassment victims, they’re not protected by the anti-harassment and -discrimination powers of Title VII. According to a review of studies by the National Employment Law Project, somewhere between 10 percent and 30 percent of the country’s employers, perhaps even more, misclassify their employees as independent contractors—translating into several million people unfairly stuck in this employment arrangement. Workers are frequently pressured into signing employment contracts that misclassify them, even though they should be employees. But proving it can be a huge hurdle to clear, not to mention just one more obstacle facing someone who’s deciding whether to report abuse. “It’s [often] more of a fight than they want to take,” Ruckelshaus said. “You can overcome [misclassification], but most workers don’t try or know that they can.”
There are some state and local efforts that are starting to address this problem for film workers and all independent contractors. While most state laws tend to follow the federal definition of who is and isn’t covered by Title VII, a few, including California and New York, have passed laws that allow contractors to sue when they experience sexual harassment.
Passing more laws that prohibit anyone from discriminating or harassing a worker, no matter the particular employment arrangement, would help nontraditional employees. While there are still plenty of barriers to reporting harassment that would remain in place, “at least it would be easier to prove if they do go forward,” Ruckelshaus said. “You don’t have to fight about are you an employee.… You just look at the behavior and not the status of the people.” The idea has some logic to it. Just because someone is classified one way or another doesn’t mean harassment brings her any less harm.
“It shouldn’t really matter if you’re an employee or an independent contractor,” Giese noted. “We’re Americans, and our civil rights should be enforced.”
