1 Lawyers for the Creative Arts The League of Chicago Theatresin conjunction with The League of Chicago Theatres presents Employment Issues Facing Theaters: Sexual Harassment in the Workplace Jan Feldman, Exec. Director | Lawyers for the Creative Arts Jeannil D. Boji, Partner | Perkins Coie LLP Steven Gillman, Partner | Holland & Knight Sarah R. Marmor, Partner | Scharf Banks Marmor LLC Monday, July 31, 2017 from 5 to 7pm
2 Program Overview The business of creating theatre and dance naturally places artists in environments that demand vulnerability and risk-taking that can be both emotional and physical. When complaints arise, the law -- and principles of best practices -- require management to address these situations promptly and fairly. Our panel of experienced employment lawyers will discuss best practices you should follow in establishing appropriate policies before incidents occur. Should you have written policies? What specific concepts should they address? Our panel will also provide practical advice for handling allegations of harassment when they occur. What immediate actions should you take? How do you accommodate the rights of privacy of the complainant, alleged harasser, and any witnesses. How do you respond to requests for information from those not involved? Audience interaction and questions are welcome and encouraged.
3 Program Agenda Introduction (Jan Feldman)General Legal Background (Steve Gillman) Theatre Context and Current Landscape (Sarah Marmor) Best Practices and Practical Strategies (Jeannil Boji) Hypotheticals (Jeannil Boji, Sarah Marmor, Steve Gillman) Conclusion (Jan Feldman)
4 Panelists
5 I. Introduction 1
6 II. General Legal Background
7 What Is Sexual Harassment?Quid Pro Quo Hostile Work Environment
8 Quid Pro Quo HarassmentUnwelcome conduct of a sexual nature. Conduct by person with authority to make employment decisions. Submission or rejection of conduct used as basis for employment decision. Example: If you go out with me, I’ll give you the part.
9 Hostile Work EnvironmentUnwelcome conduct that is so severe or pervasive that a reasonable person would be offended. Conduct by any employee, independent contractor, vendor. Conduct unreasonably interferes with work performance or creates an intimidating, hostile, or offensive work environment. Even if conduct does not rise to the level of unlawful harassment, the theatre may subject the employee to discipline because the theatre’s expectations exceed the minimum legal requirements.
10 Theatre Defenses Prompt, thorough investigation.Immediate, effective remedial (corrective) action.
11 Retaliation Taking action against employee for unjustifiably resisting or complaining about harassment.
12 Constructive DischargeReasonable person in victim’s shoes would find harassment “intolerable” and quit.
13 Sources of Legal RightsFederal State Local Union Contracts/Actors’ Equity Association Chicago Area Theatres (CAT) Agreement Common Law Criminal Law
14 III. Theatre Context and Current Landscape
15 Theatres Can be Unique Settings“Arts environments require risk, courage, vulnerability, and investment of our physical and intellectual selves.” Artistic freedom Sexual situations Power dynamics Relationships Fear of speaking up Alec Guinness kisses the knee of Madeline Smith during a rehearsal of Alan Bennett's Habeas
16 Situations/Risks Unique to Theatre WorldHow do you balance openness to the artistic process against the risk of exploitation? How do you handle romantic/personal relationships between cast members? Charismatic leaders vs cults of personality. How do you avoid embarrassing public airing of grievances? Equity vs Non-Equity Theatres Situations/Risks Unique to Theatre World
17 The Growing Attention to Problems in the Theatre World“Sex and Violence, Beyond the Script,” NYT (3/15/15) In the summer of 2012 the actress Marin Ireland was dating Scott Shepherd, a fellow theater star. They were in London, preparing to perform as the title lovers in “Troilus and Cressida.” Offstage, though, they were arguing about their relationship. According to interviews with both, Ms. Ireland slapped Mr. Shepherd one night at their apartment; two nights later he slapped her with enough force that he knocked her to the floor. When Ms. Ireland walked into rehearsal the next morning, she had a black eye.”
18 The Problem is real Confusion over blurry boundaries and accountability, the sense that there was no one impartial to turn to. Though some theaters and the 49,000-member Actors’ Equity union have harassment policies in place, the provisions are largely toothless, many performers say. And the far-flung world of plays and musicals lacks a human resources department to complain to. Privately, union officials acknowledge that their policies — buried in Article X of the union’s bylaws and not easily found on the Equity website — are a mystery to many actors and that they plan to discuss new ways to confront unprofessional conduct. (NYT, 3/15/15)
19 Lilly Awards Proposal Proposal:have a statement read on the first day of rehearsals for all Broadway and professional shows that describes how to file complaints about harassment or other unprofessional behavior; designate union officials to handle these complaints; and create a confidential mediation process where complainants and the accused can talk through instances of harassment, misconduct and abuse with a mediator and without fear of penalties. 2015 petition signed by hundreds of professionals. Including some important figures in Chicago theatre
20 The issue is not limited -- spreads to comedy/improvJanuary 2016
21 Chastened IO Head’s Lessons Learnedpowerful people in the improv community have been, perhaps unwittingly, intimidating less-established performers with their romantic advances. Create procedures around sexual harassment. Her lawyers are currently creating a sexual harassment policy for the theater, and she’s planning to hire an outside HR company to train her employees on appropriate behavior. She also plans to hire a permanent, independent HR rep that community members can report issues to, and to make iO’s harassment protocol a part of the theater's new student orientation. “I’ve learned that people are afraid to talk to me. They’re afraid that because they were victimized, I’m going to throw them off a team. That is the one thing that makes me cry… it’s the one thing that kills me.”
22 “At Profiles Theatre the drama–and abuse–is real“At Profiles Theatre the drama–and abuse–is real.” The Reader (6/18/16) A promotional photo from Profiles’s 2003 production of Blackbird. Darrell W. Cox starred as a Gulf War veteran spending Christmas with his girlfriend, a heroin-addicted former stripper.
23 Anatomy of a scandal: from whispers to closureStarted on social media. Led to creation of NIOH. Reader investigates for over a year. Litany of abuses and bad practices. Sexual relationships Violence Intimidation/cult of personality Fake employees/no board More stories emerge once published. Profiles closed within a week of publication.
24 Profiles was not a one-off incident – the stories and the drama continueDead Writers Collective – RIP, February 2017
25 The list goes on. “Women say ex-Rochester theater executive sexually harassed them.” (MPR News 7/20/17) “Amid sexual assault allegations, Chapel Hill improv club will close.” (The News & Observer 7/12/17) [who is next?]
26 Code of Conduct proposed for non-equity theatres: a tool for self-governanceChicago Theatre Standards: “This document seeks not to define artistry, or prescribe how it is created, or stand as a legal document. It seeks rather to create awareness and systems that respect and protect the human in the art – to foster safe places to do dangerous things. It is the result of input from a wide and experienced group of theatre producers and artists.” Pilot testing in 20 theatres
27 IV. Best Practices and Practical Strategies
28 Mistakes and Mis-StepsExcusing the behavior (“That’s just how he is…”) Blaming the victim (“She’s too sensitive….”; “he has no sense of humor”) Minimizing the comment or conduct (“It’s just a joke….”) Avoiding responsibility (“I’m too busy to get involved in this matter….”) Disregarding the “isolated” incident (“It only happened once….;” “If it happens again, I’ll report it.”)
29 Sexual Harassment Policies and ProceduresIs it advisable to have a written policy? To whom should such a policy apply? What should such a policy contain?
30 Is It Advisable To Have A Written Policy?Pluses Minuses CONSISTENT FOLLOW-THROUGH IS KEY.
31 To Whom Should Such A Policy Apply?Employee/Independent Contractor – Does it Matter? Many participants do not fall under the definition of “worker” or “employee” as used in federal, state, and local law. Should a policy cover independent contractors? Should a policy cover unpaid workers? Practical considerations.
32 What Should Such A Policy Contain?EEOC Guidance Clear communication Prohibited conduct Coverage Procedures for reporting/investigation Anti-retaliation/confidentiality
33 Sample Policy LanguageOur policy is to maintain a work environment that is free from unlawful harassment and discrimination. We prohibit retaliation against any person who reports a complaint or who participates in the Theatre’s investigation. We will take action against any person who violates the policy, up to and including termination of employment.
34 Investigation ProceduresUse of outside investigators Use of attorneys Issues related to small groups
35 Balancing Confidentiality and EfficacyConfidentiality and Encouraging Reporting Protection of Complainant/Accused Investigation-Related Disclosures Disclosures to Staff Disclosures to Board of Directors
36 Corrective Action Terminations/Discipline Findings AppealsOngoing Monitoring Employer liability issues Legal/Union/Contractual Considerations
37 Mediation ConsiderationsMost appropriate for serious matters, with unresolved issues like: Factual disputes (What happened? How long did it go on? etc.) Appropriate action/punishment for offender or recourse for complainant Continued tension between/among employees over incident, or company’s response Where to go for mediation American Arbitration Association JAMS Lawyers for the Creative Arts (lower cost, background in employment issues in arts organizations) Other private mediation services
38 Prevention and TrainingMessaging Training Culture
39 V. Hypotheticals
40 Hypothetical #1: Hostile Work EnvironmentHYPOTHETICAL # 1: Idona Does Edgy Edgy Theatre in Humboldt Park was founded as a place for “freedom of expression to run wild” and is known for putting on sexy, edgy, and sometimes controversial productions. Edgy’s new show - California Ave. - is the talk of the theatre community and one that really pushes the boundaries. California Ave. will feature an almost exclusively male cast who will be playing the alter egos of the female lead character as she explores her sexuality. Idona Monzol is a well-liked and well-respected actress in Chicago. While she is best known for taking more classical roles in more conservative productions, she has been wanting to break into more modern plays, and thought California Ave. could be the perfect production to help her do so. She blew everyone away at the auditions. Before she was offered the part, the executive producer, who Idona knows from previous work together, asked whether Idona truly felt she’d be “right” for the part, and for Edgy, and whether she’d really feel comfortable there. He warned that the director of the play, while very talented and creative, was known for being very intense and pushing his actors to engage in method acting to really embrace the edgy content of his plays. This often resulted in intense, and what can only be described as “libertine” working environments during productions. Idona assured the producer that she was fully committed to taking on the role and was prepared to deal with the controversial content. Rehearsals begin and the environment is even more lewd than Idona expected. As the only female actor, and one of the very few females involved in the production at all, Idona feels very uncomfortable with the tenor and content of the discussions of the rest of the cast and crew. Her fellow actors, and even the director, openly discuss lascivious topics, and roll their eyes when she doesn’t participate. Sexual jokes and tales of sexual exploits are par for the course. Some of the actors have even posted sexually suggestive pictures and quotes in theatre space, and regularly send vulgar memes to the cast’s group text chat.
41 Hypothetical #1: Hostile Work Environment, Pt. 2Scenarios: Idona says nothing about the environment or her discomfort. She feels that this is just something she has to deal with and that the executive producer warned her about. The executive producer comes by to watch rehearsals and notices the overtly sexual atmosphere and that Idona seems uncomfortable. Does he have any obligation to do anything about it? Idona complains to one of her fellow actors - probably the only one who doesn’t engage in the uncomfortable behavior and seems like he would be somewhat sympathetic. Is the actor obligated to do something? Same as above, except the sympathetic actor tells the director that Idona feels uncomfortable with the working environment. The director feels that Idona is being overly sensitive, and that she should have known that the environment when taking on such charged content was bound to get uncomfortable. He figures that he will keep his eye on the situation, but unless Idona formally complains to him, he’s not going to rock the boat and raise it. Is this okay? Same as above, except Idona complains to the director. He tells her that she may be unfamiliar with such productions, but that this sort of environment is to be expected in productions of this nature, and it added to the creative process. He tells he will try to have some of the more obnoxious cast and crew tone it down and advises her to channel her discomfort into her performance. He makes a point of telling her that if she ever felt physically intimated, or if any cast or crew directly harasses her or makes any overtures to her, she should feel comfortable coming to him. Does he have an obligation to do anything more?
42 Hypothetical #2: Superior Subordinate Relationship and Quid Pro QuoJim Presario has been the creative director of Funtimes! Theatre for 20 years. He has won many awards, is beloved by donors, and charms all who know him. He even met two of his first three wives at the theatre. He often regales cast members, staff and donors alike with stories of those romances – how they began so innocently in intense rehearsals and blossomed into true (if temporary) love. Jim’s like that. A big heart, and nothing to hide… Currently single, Jim is casting a new production of Cat on a Hot Tin Roof. Kitty Engenou, a student in the theatre’s acting classes, has caught Jim’s eye and he encourages her to audition. Kitty, like all the other students in the class, has heard Jim recount the stories about how his third wife started as a brilliant student. She went on to become an ensemble member and eventually a famous movie actress with numerous awards and nominations for her stellar performances. Jim doesn’t bear a grudge, and praises her talent effusively in his stories about their time together. After Kitty’s audition, Jim tells her she did a great job, but he has a few notes for her. He suggests they meet for drinks later that night so he can give her some pointers.
43 Hypothetical #2: Superior Subordinate Relationship and Quid Pro Quo, Pt. 2Scenarios: Kitty declines, and still gets the part. No harm, no foul? Kitty agrees, and she and Jim end up having a wild night ending up in his fabulous apartment with a view of the skyline. The next morning, he wakes her up in bed with a nice cup of coffee and tells her, “Congratulations, darling! The part is yours.” Is that okay? Kitty agrees. The pointers are excellent, and though she doesn’t get the part, she learns a lot and is cast as the lead in the next production. She mentions the story to another cast member in that production, who thinks the whole thing sounds fishy and stinks and raises concerns with the executive director at the theatre. What should the theatre do? Kitty declines, and doesn’t get the part. What should she do?
44 Hypothetical #3: Non-Supervisor Colleague Relationship ScenarioROSE FELDMAN AND JUSTIN KOOL Rose Feldman and Justin Kool have parts in a play at the Up And Coming Theatre located in West Town. Rose is age 26, and new to theatre in Chicago. Justin is age 40, well known in acting circles around Chicago as accomplished and talented, and still a bachelor. The cast for the show is comprised of 2 other actors and 2 other actresses (a total of 6), a passionate director, Woody Allen Scorsese, and an aloof, fabulously wealthy producer, Samuel Goldwyn. Justin takes note that Rose is new to the acting community and quite attractive. He asks her to join him for coffee at that “hip” shop on the corner during a break in rehearsals. Rose is flattered and eagerly accepts. She figures that Justin could be an asset and he seems quite nice and sort of handsome for a middle-aged guy. At coffee, Justin feels a good, natural chemistry and spark between them. So imagine the following happens next:
45 Hypothetical #3: Non-Supervisor Colleague Relationship Scenario, Pt. 2Scenarios: Rose decides that Justin is not her type and a bit of a jerk. He uses vulgar language and tells bawdy jokes. She tells Justin she “needs space.” Justin is pissed that she does not appreciate his attentions (after all, he is an accomplished and talented actor) so he keeps bugging her with vulgarities and jokes. When she tells him to get lost” he says she doesn’t know what she’s missing and shows her a nude frontal photo of himself on his phone. Rose decides she’s had enough and quits the show. Although she said in her diary that she did not welcome Justin’s attentions, she made no objection to Director Scorcese or Producer Goldwyn and didn’t tell anyone else about the harassment. Same facts, but Director Scorcese notices that Rose has not been her usual self lately, she seems cold and standoffish towards Justin, and during the last few days of rehearsals she seems distraught and teary. Then she quits the show. Rose is thrilled about Justin’s attentions. She figures he can help her career trajectory. So she flirts with him during breaks in rehearsals, wears fairly provocative clothing, and makes a point of touching his shoulder during their banter. Justin figures Rose “must really dig me” and asks her to join him at the Dave Matthews concert at Northerly Isle on Saturday night. Rose realizes that Justin must be getting the wrong idea and makes-up a story about going home to visit her folks in Joliet for the weekend. Justin is not deterred. He keeps asking her out and when she keeps making- up excuses he figures he’s “been played” and harasses her with vulgarities, sexual slurs, and petty slights. Rose complains to Director Scorcese but he tells her to “just deal with it.” He says she brought this down upon herself by flirting with Justin. Same facts, but when Justin figures he’s “been played,” instead of the vulgarities, slurs, and slights, Justin decides to teach Rose a lesson. When rehearsal ends for the night he and Rose are the last to leave the building. Justin corners Rose, kisses and gropes her. Rose feels violated and humiliated and s Producer Goldwyn that same night with a description of what happened and says she is traumatized. Goldwyn replies “I will look into it.” The next day he tells Rose he spoke to Justin, and Justin was shocked by “her vicious lies” and said she was being vindictive because he rebuffed her advances. Goldwyn tells Rose he does not know who to believe and “under the circumstances I will have to let you go.”
46 VI. Ongoing Considerations/ConclusionBalancing concerns Does it stifle art/creativity? Resources (LCA and other groups)
47 PANELIST BIOS AND CONTACT INFORMATION
48 Jan Feldman Jan Feldman | Lawyers for the Creative ArtsJan Feldman became Executive Director of Lawyers for the Creative Arts in He had been a member of LCA's Executive Committee where he led the organization's fundraising efforts for most of the last decade. Before he joined the LCA Board of Directors, Mr. Feldman held board president positions for several arts organizations in the areas of arts education, arts service and performing arts. They included the People's Music School, Arts Bridge and Mostly Music Chicago. He assisted those organizations in navigating challenging funding periods, significant program enhancements and transitions in their staff leadership. Mr. Feldman is a 1981 graduate of Northwestern University Law School, and practiced civil litigation concentrating on high technology and trade secret disputes. He was a partner in several Chicago law firms including Phelan, Pope & John, Holleb & Coff, and most recently, Perkins Coie. Jan Feldman | Lawyers for the Creative Arts EXECUTIVE DIRECTOR O C - 847–
49 Jeannil D. Boji Jeannil Boji | Perkins Coie LLP PARTNERJeannil Boji, a partner in Perkins Coie’s Labor and Employment group, counsels clients from startups to FORTUNE 100 companies in every aspect of employment law, including the latest developments in non- compete and trade secrets law, wage and hour law, leave and sick time law, fair employment, discrimination, and accommodation law, privacy issues and workplace investigations, and social media, confidentiality, and employment policies. Jeannil has a national practice and is well versed in federal employment law developments as well as the nuances of state employment laws throughout the country. Jeannil regularly drafts and negotiates executive employment and separation agreements, as well as non-competes and other restrictive covenants, and counsels employers on issues of workplace mobility when hiring or dealing with the departure of employees subject to employment agreements. Jeannil has successfully handled a wide variety of significant employment matters at the agency, state, and federal level, and in mediation/arbitration. Jeannil also regularly handles sensitive workplace investigations and internal compliance issues and provides employment law-related training. Jeannil Boji | Perkins Coie LLP PARTNER 131 S. Dearborn Street Suite 1700 Chicago, IL D F E.
50 Steven L. Gillman Steven L. Gillman is a partner in Holland & Knight and leader of the Chicago Labor and Employment Group. Mr. Gillman's practice emphasizes employment litigation, including claims of discrimination, wrongful discharge, breach of contract, misappropriation and use of trade secrets, defamation and other torts arising in the employment setting. He has extensive first-chair trial experience. He has appeared in cases in more than 25 states, and has tried cases in eight states. He has also handled a broad range of issues for unionized clients, including numerous labor arbitrations and unfair labor practice cases, and issues relating to union representation cases. He has amassed an extraordinary record of success in the cases he has tried. He has obtained numerous published summary judgments in cases filed in state and federal courts across the country. Steven Gillman | Holland & Knight Partner Holland & Knight LLP 131 South Dearborn Street, 30th Floor | Chicago, IL Phone | Fax
51 Sarah R. Marmor Sarah Marmor| Scharf Banks Marmor LLC Partner Scharf Banks Marmor LLC 333 W. Wacker Drive| Chicago, IL Phone Sarah R. Marmor is a founding partner of Scharf Banks Marmor LLC, one of the largest women-owned law firms in the country. She concentrates her practice on employment law, complex business litigation, and life sciences/product liability. Ms. Marmor has tried complex cases throughout the United States. Ms. Marmor heads her Firm's Employment Counseling and Litigation Practice. Her employment law experience comprises counseling in all aspects of this discipline, including discrimination claims, wage and hour issues, background checks, leave policies and law, diversity initiatives, and employment contracts and non-compete and related restrictive covenant matters. Ms. Marmor defends clients in state and federal investigations, and has tried employment contract, discrimination, and ERISA claims to successful verdicts in both state and federal courts. In recent years, she has developed significant expertise in social media law, as it applies to employers and more broadly, and she frequently lectures on this subject.
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