5 Lessons from HR from Harvey Weinstein’s conviction:

Harvey Weinstein’s workplace was a crime scene. His employer was an enabler of those crimes and complicit in covering them up.

Weinstein employed staff to find his victims. He sexually assaulted and raped women whilst on Company business. His employer (and industry sector) allowed him to commit crimes with impunity for many years.

We have the courage of Weinstein’s victims to thank for the truth coming out and Ronan Farrow’s bravery in bringing the story through to publication and resisting demands for the victims’ accounts to be buried and squashed.

Weinstein’s conviction brings to the surface three questions:

1. How did he get away with it for so long?

2. Why were the mainstream media mute?

3. Why were Weinstein’s activities revealed by a small publication, The New Yorker?

This article seeks to answer these questions and in so doing draw 5 points out for HR practitioners to ponder.

I am indebted to Ronan Farrow’s book To Catch and Kill for the quotations and for providing insight above and beyond the news headlines.

1. Reporting lines and processes are crucial to fetter power:

Bullies, harassers and rapists thrive where there is an asymmetry of power. Organisations need to put checks and balances in place to fetter individuals’ power and influence.

Harvey Weinstein exploited his power to the maximum:

a) He was physically powerful, a big man. That size enabled him to overpower physically many of his victims.

b) His firm, Miramax, was named after his mother and father, Miriam and Max. Weinstein and his brother were the founders of Miramax and controlled it with an iron grip. When Miramax was acquired by Walt Disney, Walt Disney gave the brothers’ free rein. Some of Harvey Weinstein’s crimes and sexual assaults took place whilst Walt Disney were Miramax owners. How did Walt Disney Corp, that paragon of wholesome family entertainment, allow an entity they owned to become so dysfunctional a safe haven and enabler of a sex offender? Where was their due diligence on acquisition? Why did Weinstein’s antics not reach Walt Disney’s Corps? Why was no action taken by anyone in a position of influence?

c) Harvey Weinstein had so much power within the film business that the film industry turned a blind eye, indeed many powerful people supported and protected him. Those he abused, harassed and assaulted were left without a career. Others inadvertently placed Weinstein’s victims on an industry blacklist.

The asymmetry of power enabled Weinstein to commit the crimes and then keep them hidden from view. Not only was Weinstein powerful within his business, he was a key power broker within the movie industry. There was no one within his business and very few within the industry who had the courage, stamina and integrity to stand up to him and call him out for what he was.

Power structures matter. Weinstein created a structure that allowed him to commit crimes without fear of being caught.

Neither his business, the owners of his business, or his industry sector had sufficient checks and balances in place to stop Weinstein earlier in his criminal career.

May be it should be mandatory to report allegations of sexual harassment to an industry regulatory body?

2. The fish rots from the head down. An employer’s values, standards and rules requires courage to enforce against a powerful employee or customer:

Many of the women who had been alleged they had been assaulted, harassed or raped by Weinstein came forward and made a complaint either internally or externally.

Any organisation or employer acting in accordance with their own policies and procedures would have investigated the complaint and then dealt with the offender according to the usual standard: disciplinary hearing followed by summary dismissal, if the evidence, on balance supported the complaint.

Miramax and later the Weinstein Company had a different approach. A more, ahem, pragmatic approach. An approach that favoured the perpetrator rather than the victim. Weinstein’s employers paid off the accusers and complainants at least 70 times. Short term organisational wins that eventually killed their business.

Miramax used the pay-off to silence the alleged victims so that their voices could not be heard. The NDA took power away from the victim and gave it right back to the perpetrator. The asymmetry of power manifested itself in one sided agreements.

At least one good thing that has come out of Weinstein’s use of NDAs is that the practice has been looked at by regulators and enforcement action taken by the regulators against lawyers that drafted such documents.

The one outlet where Weinstein’s criminality could have been exposed, the media, was also compromised on this issue.

The mainstream media was compromised in two ways:

1. US media outlets are reliant on advertising income. Short term commercial self-interest prevailed over ordinary decency and long term value. Weinstein was too much of a cash cow to the media for the media to slaughter him by exposing his unlawful behaviour.

2. Many mainstream US media outlets themselves had a culture of sexual harassment. Many mainstream US media outlets had a culture of paying employees off who complained of sexual harassment and assault and ensuring the complainants were subject to NDAs. As Ronan Farrow details in his book, Catch and Kill: Lies, Spies and a Conspiracy to Protect Predators both NBC and CBS had well known harassers working at a senior level for them. Both organisations had paid off women and subjected them to NDAs. Those senior executives were therefore responsive to suggestions made by Weinstein’s lawyers that NBC would be committing a tort if NBC relied on evidence that was given in breach of an NDA. They had a vested interest in ensuring that the victims of sexual assault, rape and harassment had no voice.

3. Make hiring a collective decision not an individual one:

Alleged victims’ accounts of Weinstein’s criminal behaviour show Weinstein’s MO was consistent.

1. Have a Weinstein lackey scout an attractive aspiring actress and suggest she is suitable for a role.

2. Invite that actress to a meeting to discuss a potential role, making clear in the invite that a female colleague from Miramax would be present at the meeting.

3. Make the meeting venue a hotel lobby, somewhere public.

4. At the last minute change the meeting venue to Weinstein’s hotel room with the female colleague no longer present.

5. Allegedly and in fact sexually assault the actress in the hotel room.

The casting couch is a film industry cliché. Like all clichés it should never be used. Hiring decisions about who to cast in films should not be any different to any other hiring decision. A collective decision involving two or three key people taken after a selection process which involves objective factors.

The informal mechanism of hiring actresses adopted by Miramax gave Weinstein cover and opportunity to commit his crimes. The lure of work or career advancement was the bait Weinstein used to catch his prey.

4. Don’t shoot the messenger or smear the victim:

Weinstein’s alleged offending and behaviour dates back over 20 years. Throughout that time some of the alleged victims had approached either Miramax or news outlets to tell their story.

The victims’ account as given in Farrow’s book is:

“We are more than not believed — we are berated and criticized and blamed…”

For most victims the incident itself was bad enough, the inability to speak out, the smears and innuendo compounded the original injury.

Alleged victims who complained found their careers stalled:

“After she declined the advances, she felt she received fewer assignments. “I got punished,” she said. “My career took a sharp nosedive.”

Ronan Farrow as a reporter at NBC was approached by some of Weinstein’s victims to publicise their account. The victims’ motive in giving their account was to stop it happening to other women.

Despite Farrow building up a rock solid case against Weinstein, a case with incontrovertible evidence, including an admission on tape from Weinstein about groping an actress, NBC spiked the story. They would not run with it. NBC threatened Farrow’s career, as Farrow put it in Catch and Kill:

“Many powerful people knew what Harvey Weinstein was doing and not only ignored his crimes but actively took his side against his many victims. It’s a long list but at the very top of that list is NBC News.”

Eventually a smaller publication The New Yorker ran the story.

Other media outlets ran stories emanating from Weinstein that smeared Weinstein’s accusers. Weinstein hired specialist investigators to dig up dirt on his victims. That dirt was flung by the media at the women.

Here’s the contract and the brief between Weinstein and Black Cube, the investigators. The accusers’ mental health was questioned.

Those who tried to break the story, including Farrow, had their career threatened. The victims suffered mental health issues, as Farrow’s book recounts.

Furthermore Farrow alleges in his book that some media outlets, including the National Enquirer, bought up stories from those accusing Trump of sexual misconduct on an exclusive basis and then killed those stories by not publishing them and not allowing any other outlet to publish them.

As Farrow recounts in his book from a source at National Enquirer:

“We had stories and we bought them knowing full well they were never going to run,” George said. One after another, the AMI employees used the same phrase to describe this practice of purchasing a story in order to bury it. It was an old term in the tabloid industry: “catch and kill.”

5. Long terms strategic beats short term tactical. Strategic HR beats transactional HR. The truth will out:

Weinstein’s case shows how organisations opt for short term advantage, rather than taking short term pain for long term gain. An empowered and strong Miramax HR function potentially could have nipped Weinstein’s offending in the bud by firing him in the mid-90s. The path of least resistance was taken. Easy decisions were made. Tough judgements were shirked.

NBC’s reputation suffered a big hit because it took the short-term view that running stories against Weinstein was not commercially viable.

Once Weinstein was outed, media attention soon turned to NBC not running the story. NBC’s own culture and their own culture of sexual harassment came under the spotlight. Rather than fessing up NBC went in for the short-term win of a denial a white wash:

“Over the following months, the message that no one at NBC knew about Lauer became a steady drumbeat. In May 2018, NBCUniversal announced the final results of an internal investigation: “We found no evidence indicating that any NBC News or Today show leadership, News HR or others in positions of authority in the News Division received any complaints about Lauer’s workplace behavior prior to Nov. 27, 2017,”

As it later turned out:

“the network in fact brokered nondisclosure agreements with at least seven women who experienced alleged harassment or discrimination within the company”

The Weinstein case is a text book example of those who took a short term, pragmatic and transactional view of Weinstein or sexual harassment claims in general coming out of the case with long term career terminal damage.

Those who were willing to take short term pain in the knowledge that running the story was the right thing to do, come out of the Weinstein story with their career enhanced and their integrity intact. HR must be brave and take a leaf out of Ronan Farrow and The New Yorker’s book.

HR’s role must be to catch the perpetrators of harassment, bullying and kill the culture in which that behaviour grows.

HR’s role must not be to catch the allegation and then kill it by paying the victim off under a settlement agreement and leaving the perpetrator in place.

HR must do what’s right, not what’s easy.

The last word must go to the victims:

“In the end, the courage of women can’t be stamped out. And stories — the big ones, the true ones — can be caught but never killed.”

Philip Hyland is an employment Law Solicitor with over 25 years’ experience.

He is the author of A Practical Guide to the Law of Bullying and Harassment at Work.