INDUSTRY RESOURCES - FOR EMPLOYERS
CHANGE THE CULTURE
Promoting safe, equitable and harassment-free environments requires significant resources – time, people and budget. Our goal in preparing this toolkit of resources for production and other entertainment companies is to make sure that, no matter the size of the production, leadership has access to state-of-the-art practices, resources and guidance, including a sample policy to promote safe, equitable and harassment-free workplaces.
Small entertainment companies may question the need for a system to address harassment and discrimination. With a limited number of employees and resources, implementing a system may seem unnecessarily complicated and expensive. However, state and federal law requires employers – regardless of size – to provide a safe workplace that is free of harassment and discrimination.
Disclaimer
This toolkit and resources are not and do not seek to be a binding legal document and the language does not constitute a binding agreement or create any rights of enforcement. Further, nothing in this document negates an employer’s obligations under any relevant federal, state or local law. Each section of this Toolkit is for reference only and is to be used at the consumer’s own risk. The Hollywood Commission does not guarantee that any or all aspects of this Toolkit have been updated to reflect any changes or developments in the law. Employers should confirm the legal requirements that apply to their organizations and seek legal advice.
MINIMUM SYSTEM ELEMENTS
Minimum Systems Elements
The Hollywood Commission and its Partner Organizations support the industry-wide adoption of systems to address harassment and discrimination that include, at a minimum:
• Requirement #1: Policies and procedures to address and investigate harassment and discrimination
• Requirement #2: Training and education on discrimination and harassment policies, including investigation practices
• Requirement #3: Reporting mechanisms to raise concerns about harassment and discrimination, confidentially and/or anonymously
• Requirement #4: Resolution procedures to address concerns about harassment and discrimination
• Requirement #5: Retaliation protections for those individuals who allege violations or who participate in the investigation of alleged violations.
Each production company’s system to prevent and respond to discrimination, harassment, sexual harassment, retaliation and bullying will be shaped by applicable law, adapted to reflect its size and resources and tailored to its specific risks.
SAMPLE WORKPLACE CONDUCT POLICY
Sample Workplace Conduct Policy
SET STANDARDS
This sample policy will assist U.S.-based entertainment industry employers and unions, including film and television, commercials, live theater and music, in protecting thousands of workers from discrimination, harassment and bullying – particularly those entities who don’t have a policy, are seeking to fortify their policy, or are revising policy. This sample will help companies go beyond the legal requirements and create policies and procedures to:
1) strengthen established internal policies
2) educate and empower all persons involved in a project
3) create workplaces free of all harassment, discrimination, and bullying
4) identify and promptly and effectively address harassment, discrimination, and bullying if it occurs – no matter the employment status or seniority of the person(s) involved
5) stop retaliation against anyone who raises an issue or who participates in an investigation in good faith.
EMPLOYER CHECKLISTS
Employer Checklists
These checklists are a tool to help develop and implement a system to address discrimination and harassment on a production. They are not legal advice and don’t set forth legal requirements relating to discrimination, harassment or retaliation. Not all elements will apply in every workplace. Checking all boxes doesn’t necessarily mean an employer is in legal compliance. The failure to check any particular box doesn’t necessarily mean an employer isn’t in legal compliance. Employers should consult with counsel to make sure they are up-to-date and comply with current law.
Downloads
TEMPLATE POLICIES AND PROCEDURES
Template Policies and Procedures
MANAGE HIGH-RISK SITUATIONS
In addition to a workplace conduct policy – productions and other entertainment companies should adopt policies and procedures to manage high-risk situations. These can include the use of drug or alcohol and holding private meetings in isolated settings.
Not all policies need to be adopted.
Your company should adopt the policies that are necessary to help it ensure it meets your unique needs. That does not mean adopting all policies wholesale. Some of the policies will not be applicable to you.
Adopting more policies isn’t always better.
There is a risk to adopting policies that aren’t implemented properly. Someone has to be responsible for the policies – and for maintaining the policy, enforcing the policy, receiving reports, and investigating potential violations.
Make the policies specific to your production.
Each production is unique in how it operates. Our policy templates are generic.
• The template policies reference the “Company” generally and need to be revised to include your company’s name and logo. It is also advisable to include pictures and answers (Q&A) to accompany the various sections and content.
• Many template policies reference departments (e.g., Legal, Human Resources, Ethics & Compliance), position titles, or program (e.g., hotlines, online anonymous reporting sites, case management program) that may not exist or may be called something different at your company. Replace these terms with the departments, position titles or programs that are used by your company.
• To develop a policy that sufficiently addresses your production or company, you may need to add to and expand on the template.
Downloads
Ensure high standards across your supply chain.
More than 1 in 4 reported sexual assaults in the entertainment industry involved drug or alcohol.
Address harassment on social media platforms.
In almost 70% of sexual assaults in the entertainment industry occurred in one-on-one situations.
FAQ's
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Employers must provide a workplace free of discrimination and harassment and must take action if they become aware of violations.
Generally, an employer:
• Is responsible for the actions of company owners and agents, including supervisors (like unit production managers).
• May be responsible for the actions of non-supervisory employees or even non-employees (such as vendors, independent contractors, or visitors in the workplace) if it had reason to be aware of the conduct but failed to take steps to prevent it.
• Must investigate discrimination or harassment if there is reason to believe it has occurred, even in the absence of a formal complaint.
Generally, an employer:
• Is responsible for the actions of company owners and agents, including supervisors (like unit production managers).
• May be responsible for the actions of non-supervisory employees or even non-employees (such as vendors, independent contractors, or visitors in the workplace) if it had reason to be aware of the conduct but failed to take steps to prevent it.
• Must investigate discrimination or harassment if there is reason to believe it has occurred, even in the absence of a formal complaint.
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Federal, state and some local laws address discrimination, harassment (including sexual harassment), and retaliation.
• Application. Which laws apply depend on several factors, including office or work location, the number of people employed in total and in each location, and the minimum number of employees specified in the particular employment law statute.
• Scope. Each law contains its own scope of coverage, including the individuals protected by the law. Discrimination laws typically apply only to employees and applicants. Some state harassment provisions, however, also protect independent contractors, consultants, temporary employees, interns, volunteers and anyone else who may be in an employer’s work location. Employers must comply with all federal, state, and local laws that are applicable, even if the laws have different legal standards.
• Implementation. Employers must be certain that handbooks and other published policies are written based on the laws applicable in the different jurisdictions in which the handbooks are used.
Federal law
Federal laws such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act apply to all private employers, state and local governments, and educational institutions with 15 or more employees. Other federal laws to be aware of include:
• Age Discrimination in Employment Act (ADEA)
• Pregnancy Discrimination Act (PDA)
• Americans with Disabilities Act (ADA)
• Equal Pay Act (EPA) Immigration Reform and Control Act (IRCA)
• Genetic Information Nondiscrimination Act (GINA)
State law
Many states have their own anti-discrimination laws.
California
California, through the California Fair Employment and Housing Act, prohibits workplace discrimination and harassment. The prohibition of harassment extends to employees, applicants, unpaid interns, volunteers, and independent contractors by any persons and requires employers to take all reasonable steps to prevent harassment. This includes a prohibition against sexual harassment, gender harassment, harassment based on pregnancy, childbirth, breastfeeding and/or related medical conditions, as well as harassment based on all protected characteristics. For discrimination and retaliation claims, California’s law applies to employers with five or more employees. For harassment claims, there is no minimum.
Georgia
Georgia has no specific anti-discrimination laws. Instead, employees working in Georgia must rely upon the federal EEOC to pursue claims. This means that victims of discrimination have only 180 days within which an employee must report his or her allegations of discrimination. Georgia’s law applies to employers with 15 or more employees.
Illinois
The Illinois Department of Human Rights administers the Illinois Human Rights Act ("Act"). The "Act" prohibits discrimination in Illinois with respect to employment. Illinois employers are required to train employees on sexual harassment prevention by December 31, 2020, and on an annual basis thereafter. This requirement applies to all employers with employees working in this State. Employers must either develop their own sexual harassment prevention training program that equals or exceeds the minimum standards for sexual harassment prevention training outlined in Section 2-109(B) of the Illinois Human Rights Act (IHRA), or they may use the model training provided by the IDHR.
The Illinois Human Rights Act previously applied only to businesses with 15 or more employees – except in cases of sexual harassment, pregnancy discrimination and disability discrimination – where the definition of “employer” was defined as including an employer with one or more employees. As of July 2, 2020, the definition of “employer” as to all claims is one with one or more employees.
New York
New York’s Human Rights Law explicitly includes protection in employment from harassment based on any protected class. The Human Rights Law also protects victims of harassment, including sexual harassment. In particular, harassment is against New York law whenever an individual is subjected to inferior terms, conditions or privileges of employment; the harassment need not be severe or pervasive for the employer to be liable. New York eliminated a minimum employee count for both harassment and discrimination claims. Under the New York State Human Rights Law, an employer is defined as including “all employers within the state.”
Non-employees working in the workplace are protected from all discrimination. Thus, the protections extend to contractors, subcontractors, vendors, consultants or others providing services in the workplace.
Local Law
Some localities have their own discrimination laws that apply to employers of a certain size. For example, the City of Atlanta has codified protections against discrimination, including on the basis of orientation. New York City also has its own discrimination laws, with a four-employee minimum for coverage of its specific ordinances and provisions.
Contract compliance
Employers should analyze any obligations under collective bargaining agreements, if applicable. Various entertainment industry collective bargaining agreements contain provisions that prohibit discrimination and harassment, including sexual harassment. In addition, employers should check collective bargaining agreements for specific rules that govern the employment of minors, as well as federal and state laws designed to protect them.
Other laws
Employers may also have obligations under other relevant laws, such as privacy, defamation, industrial, and criminal laws.
• Application. Which laws apply depend on several factors, including office or work location, the number of people employed in total and in each location, and the minimum number of employees specified in the particular employment law statute.
• Scope. Each law contains its own scope of coverage, including the individuals protected by the law. Discrimination laws typically apply only to employees and applicants. Some state harassment provisions, however, also protect independent contractors, consultants, temporary employees, interns, volunteers and anyone else who may be in an employer’s work location. Employers must comply with all federal, state, and local laws that are applicable, even if the laws have different legal standards.
• Implementation. Employers must be certain that handbooks and other published policies are written based on the laws applicable in the different jurisdictions in which the handbooks are used.
Federal law
Federal laws such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act apply to all private employers, state and local governments, and educational institutions with 15 or more employees. Other federal laws to be aware of include:
• Age Discrimination in Employment Act (ADEA)
• Pregnancy Discrimination Act (PDA)
• Americans with Disabilities Act (ADA)
• Equal Pay Act (EPA) Immigration Reform and Control Act (IRCA)
• Genetic Information Nondiscrimination Act (GINA)
State law
Many states have their own anti-discrimination laws.
California
California, through the California Fair Employment and Housing Act, prohibits workplace discrimination and harassment. The prohibition of harassment extends to employees, applicants, unpaid interns, volunteers, and independent contractors by any persons and requires employers to take all reasonable steps to prevent harassment. This includes a prohibition against sexual harassment, gender harassment, harassment based on pregnancy, childbirth, breastfeeding and/or related medical conditions, as well as harassment based on all protected characteristics. For discrimination and retaliation claims, California’s law applies to employers with five or more employees. For harassment claims, there is no minimum.
Georgia
Georgia has no specific anti-discrimination laws. Instead, employees working in Georgia must rely upon the federal EEOC to pursue claims. This means that victims of discrimination have only 180 days within which an employee must report his or her allegations of discrimination. Georgia’s law applies to employers with 15 or more employees.
Illinois
The Illinois Department of Human Rights administers the Illinois Human Rights Act ("Act"). The "Act" prohibits discrimination in Illinois with respect to employment. Illinois employers are required to train employees on sexual harassment prevention by December 31, 2020, and on an annual basis thereafter. This requirement applies to all employers with employees working in this State. Employers must either develop their own sexual harassment prevention training program that equals or exceeds the minimum standards for sexual harassment prevention training outlined in Section 2-109(B) of the Illinois Human Rights Act (IHRA), or they may use the model training provided by the IDHR.
The Illinois Human Rights Act previously applied only to businesses with 15 or more employees – except in cases of sexual harassment, pregnancy discrimination and disability discrimination – where the definition of “employer” was defined as including an employer with one or more employees. As of July 2, 2020, the definition of “employer” as to all claims is one with one or more employees.
New York
New York’s Human Rights Law explicitly includes protection in employment from harassment based on any protected class. The Human Rights Law also protects victims of harassment, including sexual harassment. In particular, harassment is against New York law whenever an individual is subjected to inferior terms, conditions or privileges of employment; the harassment need not be severe or pervasive for the employer to be liable. New York eliminated a minimum employee count for both harassment and discrimination claims. Under the New York State Human Rights Law, an employer is defined as including “all employers within the state.”
Non-employees working in the workplace are protected from all discrimination. Thus, the protections extend to contractors, subcontractors, vendors, consultants or others providing services in the workplace.
Local Law
Some localities have their own discrimination laws that apply to employers of a certain size. For example, the City of Atlanta has codified protections against discrimination, including on the basis of orientation. New York City also has its own discrimination laws, with a four-employee minimum for coverage of its specific ordinances and provisions.
Contract compliance
Employers should analyze any obligations under collective bargaining agreements, if applicable. Various entertainment industry collective bargaining agreements contain provisions that prohibit discrimination and harassment, including sexual harassment. In addition, employers should check collective bargaining agreements for specific rules that govern the employment of minors, as well as federal and state laws designed to protect them.
Other laws
Employers may also have obligations under other relevant laws, such as privacy, defamation, industrial, and criminal laws.
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Productions must enforce their policies both on and off company property and in any setting in which staffs find itself in connection with their jobs (which can occur after regular work hours or away from the regular workplace).
Examples include:
• auditions or casting meetings, pitches, creative meetings and production meetings
• job interviews
• industry events, festivals and awards
• production studios and sets (whether local or remote), including location scouting trips, location and studio shoots, post-production trips and marketing/publicity events
• offices, trailers, make-up and wardrobe spaces and any other meeting spaces
• rehearsal and performance venues
• company functions and work-related events, e.g., premiere, finale, wrap and holiday parties
• road shows or financing meetings and related events such as dinners or other outings
• any other setting in which an employee is required to be in the course of employment.
Examples include:
• auditions or casting meetings, pitches, creative meetings and production meetings
• job interviews
• industry events, festivals and awards
• production studios and sets (whether local or remote), including location scouting trips, location and studio shoots, post-production trips and marketing/publicity events
• offices, trailers, make-up and wardrobe spaces and any other meeting spaces
• rehearsal and performance venues
• company functions and work-related events, e.g., premiere, finale, wrap and holiday parties
• road shows or financing meetings and related events such as dinners or other outings
• any other setting in which an employee is required to be in the course of employment.
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Bullying may not be unlawful. But it can contribute to a toxic workplace climate that tolerates harassing behaviors and should be prohibited. According to the EEOC, “Incivility is often an antecedent to workplace harassment, as it creates a climate of ‘general derision and disrespect’ in which harassing behaviors are tolerated. . . . Researchers also have found that uncivil behaviors may spiral into harassing behaviors.”
To prevent bullying, productions should consider:
1. Having a clear workplace bullying policy which may be incorporated into a workplace conduct policy.
2. Providing multiple ways for employees to report bullying. If the only way for someone to report workplace bullying is to inform their supervisor, and their supervisor is the bully, this creates an untenable situation.
3. Making sure employees know how to report bullying.
4. Responding to all claims of bullying.
5. Providing training on bullying.Employers subject to California’s sexual harassment training requirement need to include “abusive conduct” (bullying) prevention. California defines “abusive conduct” as:
"Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious."
Note that “abusive conduct” isn’t necessarily related to a legally protected characteristic.
To prevent bullying, productions should consider:
1. Having a clear workplace bullying policy which may be incorporated into a workplace conduct policy.
2. Providing multiple ways for employees to report bullying. If the only way for someone to report workplace bullying is to inform their supervisor, and their supervisor is the bully, this creates an untenable situation.
3. Making sure employees know how to report bullying.
4. Responding to all claims of bullying.
5. Providing training on bullying.Employers subject to California’s sexual harassment training requirement need to include “abusive conduct” (bullying) prevention. California defines “abusive conduct” as:
Note that “abusive conduct” isn’t necessarily related to a legally protected characteristic.
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No. However, relationships between supervisors and their subordinates should be disclosed and, typically, prohibited. One recent survey found that 84 percent of men and 93 percent of women disapprove of affairs between managers and subordinates. Concerns include favoritism and preferential treatment. In addition, these relationships may be misconstrued by others or be less consensual than perceived by the individual whose position confers power.
Although there are no laws which prohibit interoffice relationships, there are risks in any workplace relationship (including romantic, dating, or sexual relationships), particularly between individuals in unequal positions (e.g., production manager-intern; supervisor-employee, producer-talent). These relationships can be less consensual than perceived by the individual whose position confers power. Such relationships also tend to create actual or perceived conflicts of interest. For example, it may appear to others that there is favoritism or bias in employment decisions affecting the staff member in such a relationship. To avoid the misuse of power, require the disclosure of such relationships and discuss them with employment counsel.
***Decisions around employee dating will be subject to general anti-discrimination scrutiny. This means employers can face discrimination liability if, for example, it is shown they permitted dating among employees who are under 40 but not among employees over 40, among heterosexual employees but not LGTBQIA+ employees, and the like. Consult with counsel to ensure your policy and its implementation comply with the law.
Although there are no laws which prohibit interoffice relationships, there are risks in any workplace relationship (including romantic, dating, or sexual relationships), particularly between individuals in unequal positions (e.g., production manager-intern; supervisor-employee, producer-talent). These relationships can be less consensual than perceived by the individual whose position confers power. Such relationships also tend to create actual or perceived conflicts of interest. For example, it may appear to others that there is favoritism or bias in employment decisions affecting the staff member in such a relationship. To avoid the misuse of power, require the disclosure of such relationships and discuss them with employment counsel.
***Decisions around employee dating will be subject to general anti-discrimination scrutiny. This means employers can face discrimination liability if, for example, it is shown they permitted dating among employees who are under 40 but not among employees over 40, among heterosexual employees but not LGTBQIA+ employees, and the like. Consult with counsel to ensure your policy and its implementation comply with the law.
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Unacceptable or unlawful workplace conduct – like sexual assault – may also be criminal.
What constitutes criminal conduct varies based on the jurisdiction, as it depends on the legislation in effect. However, some examples of conduct that will usually be considered to be criminal include physical assault, sexual assault, stalking or cybercrime (which includes conduct that occurs over the phone, in text message, or online). Seek legal advice on whether unacceptable workplace conduct may also constitute a criminal offense.
Employer obligations where a workplace complaint may also be criminal
• There typically is no mandatory requirement to refer a matter to law enforcement if alleged misconduct may also be criminal. However, if the conduct involves a minor, seek legal advice and check the mandatory reporting laws. See Child Welfare Information Gateway.
• If an employee makes a complaint and the conduct could be criminal, ask whether the employee wants to refer the matter to appropriate authorities, in addition to dealing with the complaint internally.
• An employee should not in any way be discouraged from making a complaint to law enforcement. If an employee wishes to report the matter to authorities, the employee should be provided with the appropriate support to do so.
• Although there is no requirement to inform authorities if an employee reports conduct that may involve a crime, there is still an obligation to protect the health and safety of the employee at work and deal with the employee’s complaint.
Investigating if the conduct is reported to law enforcement or is potentially criminal
If a complaint is made to law enforcement, this does not mean that the employer doesn’t have a responsibility to address the misconduct.
• A criminal investigation is separate and independent to any investigation conducted by the employer.
• A criminal investigation will also have a different standard of proof (beyond a reasonable doubt) than a workplace investigation (usually, preponderance of the evidence).
• If a complaint is made to the police and the police decide not to investigate the matter further. This does not mean that the employer should not proceed with their own investigation as there are many reasons why the police may decline to pursue a complaint.
• If an employer is made aware of unacceptable workplace conduct, production management should take steps to investigate the alleged conduct and, where appropriate, take action to address the conduct or put in place measures to reduce the risk of further conduct. This is consistent with an employer’s obligation under employment discrimination laws to provide a safe workplace.
***Tip Consider hiring at least one dedicated HR/Labor Relations person when you have 40 or more staff having at least one dedicated and seasoned HR/Labor Relations person who is familiar with the production environment for every 80 people.
Require production HR be available from the start of pre-production through to end of post-production. This person can circulate among the cast and crew, and must become the trusted, well-known face of the harassment prevention policy. If a complaint or issue is raised by anyone on the production, it should be directed to this person right away.
If a smaller production company does not have access to in-house labor and employment lawyers, considering hiring one on retainer to provide advice to the HR/Labor Relations staff.
What constitutes criminal conduct varies based on the jurisdiction, as it depends on the legislation in effect. However, some examples of conduct that will usually be considered to be criminal include physical assault, sexual assault, stalking or cybercrime (which includes conduct that occurs over the phone, in text message, or online). Seek legal advice on whether unacceptable workplace conduct may also constitute a criminal offense.
Employer obligations where a workplace complaint may also be criminal
• There typically is no mandatory requirement to refer a matter to law enforcement if alleged misconduct may also be criminal. However, if the conduct involves a minor, seek legal advice and check the mandatory reporting laws. See Child Welfare Information Gateway.
• If an employee makes a complaint and the conduct could be criminal, ask whether the employee wants to refer the matter to appropriate authorities, in addition to dealing with the complaint internally.
• An employee should not in any way be discouraged from making a complaint to law enforcement. If an employee wishes to report the matter to authorities, the employee should be provided with the appropriate support to do so.
• Although there is no requirement to inform authorities if an employee reports conduct that may involve a crime, there is still an obligation to protect the health and safety of the employee at work and deal with the employee’s complaint.
Investigating if the conduct is reported to law enforcement or is potentially criminal
If a complaint is made to law enforcement, this does not mean that the employer doesn’t have a responsibility to address the misconduct.
• A criminal investigation is separate and independent to any investigation conducted by the employer.
• A criminal investigation will also have a different standard of proof (beyond a reasonable doubt) than a workplace investigation (usually, preponderance of the evidence).
• If a complaint is made to the police and the police decide not to investigate the matter further. This does not mean that the employer should not proceed with their own investigation as there are many reasons why the police may decline to pursue a complaint.
• If an employer is made aware of unacceptable workplace conduct, production management should take steps to investigate the alleged conduct and, where appropriate, take action to address the conduct or put in place measures to reduce the risk of further conduct. This is consistent with an employer’s obligation under employment discrimination laws to provide a safe workplace.
***Tip Consider hiring at least one dedicated HR/Labor Relations person when you have 40 or more staff having at least one dedicated and seasoned HR/Labor Relations person who is familiar with the production environment for every 80 people.
Require production HR be available from the start of pre-production through to end of post-production. This person can circulate among the cast and crew, and must become the trusted, well-known face of the harassment prevention policy. If a complaint or issue is raised by anyone on the production, it should be directed to this person right away.
If a smaller production company does not have access to in-house labor and employment lawyers, considering hiring one on retainer to provide advice to the HR/Labor Relations staff.