This week Harvey Weinstein, the Hollywood mogul who was accused by dozens of women of sexual harassment, assault, and/or rape, was convicted of committing a sex act in the first degree against one woman and rape in the third degree against another. The allegations against Mr. Weinstein surfaced in 2017 and served as the catalyst of the #MeToo movement. With this verdict, the very definition of consent has seemingly been altered. While Mr. Weinstein’s case was criminal, it involved professional misconduct and employers need to recognize the impact this case could have in the workplace.
Before #MeToo, employers and prosecutors alike would be loath to investigate, or even take seriously, the complaint of a woman who made an accusation of sexual harassment or assault against an individual with whom they maintained a close relationship after the alleged misconduct. In fact, in the Weinstein case, two of the accusers continued to see Mr. Weinstein after the attacks. In the wake of #MeToo, and now with the Weinstein verdict, the contours of consent are changing. Employers need to take every complaint of sexual harassment seriously, regardless of a cordial history between the accuser and the accused.
Traditionally, if an accuser maintained a close relationship with the accused, it was a death knell for the complaint. Employers simply would not take the complaint seriously, with the justification that if a person was being harassed, they would not continue to fraternize with the harasser. Therefore, the employer would justify that whatever went on between the two employees must have been consensual. In fact, Weinstein’s defense team attempted to paint a portrait of consensual relationships between himself and his accusers. They claimed the relationships were between parties that knew and understood the parameters, and that each party got what they wanted out of the relationship. The women achieved access to fame and fortune from one of the most powerful men in Hollywood, while Mr. Weinstein received sexual gratification.
This power imbalance also extends into the workplace. When an employee is harassed by a supervisor or executive, it is likely that the employee will not complain in order to avoid “rocking the boat” and potentially damaging their career. Fear of retaliation is prevalent among individuals who file workplace harassment claims. Depending on how powerful the employer or supervisor is, the backlash for filing a complaint can follow accusers throughout their careers. In the Weinstein case, several accusers acknowledged the fear of retaliation and explained that this prevented them from coming forward sooner.
Further, as the Weinstein prosecutors’ expert witness, forensic psychologist Dr. Barbara Ziv, testified, many sexual abuse victims maintain contact and relationships with their aggressors. Dr. Ziv asserted that often times victims maintain a relationship to help themselves normalize traumatic experiences. Therefore, the existence of a close relationship with the accused after the alleged misconduct is not probative of consent.
Weinstein’s defense team pointed to these continued relationships as evidence that every encounter between the victims and Mr. Weinstein was consensual. Historically, this strategy has been extremely effective in absolving the accused from any culpability. However, as the verdict in this case proves, there has been a paradigm shift in the notion of consent.
The Shifting Paradigm
While Harvey Weinstein is just a single case, it is undeniable that over the past few years there has been an awakening in the public understanding of sexual harassment and workplace abuse. Just because an individual consented to a relationship or conduct in one instance, does not mean that the individual has given blanket consent for all interactions. Even if an employee does not explicitly oppose the unwelcome conduct, that does not amount to consenting to the conduct.
With this new awareness of the degrees of consent, employers have a real challenge to thoroughly and sensitively address sexual harassment. Employers need to evaluate consent on an episode by episode basis. If an employer dismisses a complaint because of a perceived friendly, or even romantic, relationship between the accuser and the accused, they can open themselves up to potential legal liability.