Hollywood is currently facing a controversy decades in the making involving a rising storm of allegations of sexual assault and harassment against some of the titans of the movie industry.  A deluge of complaints against uber-producer Harvey Weinstein quickly resulted in his ouster from the Weinstein Company, a company he founded and ran until he was removed by its Board of Directors. The numerous complaints have not only decimated his personal image, but also are threatening the company’s continued existence.  More recently, allegations of decades-old sexual abuse against actor Kevin Spacey resulted in Netflix halting production on the final season of its hit show House of Cards. 

With increasing frequency, men and especially women are sharing their experiences of alleged sexual harassment and assault.  Unique to the current times, people are utilizing social media to report and publicize their experiences to the world. 

The Weinstein scandal has undoubtedly reignited and elevated discussions of sexual harassment in the workplace, beyond what employers have seen in decades. It is shining a spotlight on the prevalence of workplace harassment and those in positions of power who abuse that power, as well as the importance of an employer’s obligations in rooting out, training, and preventing sexual harassment. Sexual harassment comes in many forms and varying degrees, and as the current trend demonstrates, a long-simmering environment of sexual harassment can erupt in a sudden and volatile fashion.  

Given the complexity of issues pertaining to sexual harassment in the workplace, we will be examining some of the most important and interesting aspects of sexual harassment through a mini-series of posts.  Although the focus is currently on Hollywood, we expect the controversy will spill over to other industries and will have far-reaching effects, including a significant uptick in claims of sexual harassment.

You may be wondering, “If it has been so long since many of these alleged incidents occurred, how can the alleged victims bring suit against Harvey Weinstein or the Weinstein Company?”   Part one of this mini-series will explore this question.  Part two will address issues surrounding the effect of non-disclosure provisions in settlement agreements and the breach of those provisions by alleged victims.

Statute of Limitations: How long can the claims stay alive?

Generally, federal and state laws require alleged victims who assert claims of wrongdoing against an individual or company to do so within a specified period of time, otherwise their claim will be time-barred under an applicable statute of limitations.  In Harvey Weinstein’s case, several of the alleged instances of sexual assault and harassment occurred up to 30 years ago.  This calls into question whether or not these individuals are barred from bringing suit because of the length of time that has passed.

In California, employees have two primary avenues available to pursue a sexual harassment claim: (1) they can file administrative complaints with the Department of Fair Employment and Housing (“DFEH”) and Equal Employment Opportunity Commission (“EEOC”), the state and federal agencies, respectively, charged with investigating and enforcing civil rights laws, or (2) they can bypass the federal agencies and file a lawsuit (or action in arbitration) against the alleged harasser and/or employer – common law sexual harassment claim.

  1. In California, typically employees must exhaust administrative remedies and file a complaint with the DFEH/EEOC within one year of the date of the last incident of sexual harassment.
  1. The California Constitution, Article I, Section 8, expressly prohibits employment discrimination on the basis of sex and provides an alleged victim of sexual harassment with yet another avenue to sue an employer for sexual harassment. Additionally, California Civil Code Section 51.9, allows an individual to bring a civil claim of alleged sexual harassment.  The statute of limitations associated with a common law or civil harassment claim is two years from the date of the alleged sexual harassment incident.  

As explained above, the statute of limitations has seemingly time-barred several of the accusers from bringing traditional sexual harassment claims against Harvey Weinstein or the Weinstein Company.  However, that has not stopped lawsuits from being filed.

Negligence Claims and the Role of a Company’s Knowledge of Past Misconduct

On October 24, 2017, in Los Angeles Superior Court, actress Dominique Huett filed a lawsuit against the Weinstein Company for negligence. As you may have noticed, Weinstein is not individually named - rather, it is the Weinstein Company.  In California, employers have a duty to take all reasonable steps necessary to prevent sexual harassment from occurring. Companies that know about harassing conduct, but fail to put a stop to it, can be liable for the sexual harassment. Huett is alleging that the Weinstein Company knew of Weinstein’s unlawful conduct “going back to the 1990s” and that the Weinstein Company “failed to institute corrective measures to protect women from coming into contact with Weinstein.”

Huett may run into a procedural issue because the alleged incident of harassment occurred in 2010.  This is well past the two-year statute of limitations for personal injury negligence actions. However, California courts have recognized an exception to this general rule, called “the discovery rule”, which allows the alleged victim to argue that the statute of limitations does not begin to run until they discovered the harm. Huett’s counsel may argue that she could not have discovered the Weinstein Company’s role in Weinstein’s conduct due to the widespread use of non-disclosure agreements and/or confidential settlements (which we discuss in more detail in the next part of our series). Huett may contend that her claim did not accrue (and the clock on the statute of limitation did not begin running) until recently, when she found out about the Weinstein Company’s alleged knowledge and allowance of Harvey Weinstein’s harassing conduct over the years. If the court accepts this argument, we expect several more lawsuits against the Weinstein Company to be filed by others asserting similar arguments.  It is potentially an important lesson to be learned by employers. Although Harvey Weinstein may be insulated from personal liability, the Weinstein Company itself (the employer) is vulnerable.

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