SEXUAL HARASSMENT and abuse continues to be a festering problem in our culture, despite the recent rise of social movements and the courage and self-sacrifice of individuals to confront it. Those who work in the theater industry, where people of disparate power must work closely, intensely and intimately for prolonged periods in order to put on a show, may be particularly vulnerable to this sort of predatory behavior.
In our industry, each theatrical union has a collective bargaining agreement with its employers (the producers) that establishes a way that employees can report and seek redress when they are victimized in this way. But dramatists are uniquely situated, in that the Guild is not a union and dramatists are not employees.
While there are state and federal laws, and union contracts, that attempt to address sexual harassment, those laws and contracts apply to “employees” in their “work place.” But dramatists may not have the protection of such laws or recourse to such contracts, because writers in the theater are licensors of intellectual property, not “employees” per se (at least under the current laws). So legal protections for employees may not be available to dramatists.
In some cases, a dramatist not only licenses their property but also provides services for a fee (like when a writer is paid a non-recoupable commission to write a specific work, or is required to be present and participate in the development process of a new work). In such cases, a dramatist may be compensated as an “independent contractor” and, as such, could be entitled to certain kinds of legal recourse. New York State recognizes sexual harassment relating to non-employees under NY CLA Exec s. 296-d:
“It shall be an unlawful discriminatory practice for an employer to permit sexual harassment of non-employees in its workplace. An employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace, with respect to sexual harassment, when the employer, its agents or supervisors knew or should have known that such non-employee was subjected to sexual harassment in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action. In reviewing such cases involving non-employees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the harasser shall be considered.”
But non-employees are still outside the scope of the laws that protect employees in many other jurisdictions.
In addition, beyond the problems of defining an “employee,” how can a “work place” be defined in the context of a theatrical production? Is it just the offices, the rehearsal halls and the venues where a show is being presented? Or could it be a bar where a writer is meeting a director to discuss their notes, or a hotel room where a playwright has cocktails with a producer to pitch a new play, or a star’s home, where the composer and lyricist perform the new song they’ve written for their new show to try and persuade the actor to accept the lead role? These may or may not be deemed “work places” under the laws of a particular state, but they surely are places where a dramatist interacts with others who may have power over their career.
And what is the appropriate role for the labor unions in this industry? There has been much debate on that question. From the union’s perspective, workplace safety is an issue of collective bargaining and is the responsibility (and expense) of the employer. In addition, they have a legal “duty of fair representation” to their members that they claim puts a limit on their ability to share information or act directly with other organizations or individuals against their own membership. Nonetheless, some unions have been working to increase their services and education for their members on this problem and to provide the resources that they can (You can see their information in the links section below). At the request of The Dramatists Guild, the Coalition of Broadway Unions and Guilds has formed a sub-committee to study the issue and recommend further steps.
As you can see, sexual harassment is a complex issue that has unique application for dramatists and, therefore, is of particular concern to the Guild. In our view, what is required to protect dramatists in this context is an industry-wide and long-term approach that involves all the theatrical unions and guilds, as well as the theaters and producers. People who are victimized by such illicit behavior need to know that they have someplace to go to get support and confidential advice, independent of any one union or employer, and that there are mechanisms available to those seeking redress regardless of the power and influence of the perpetrators or the labor and contract status of the victim.
What the Guild can do:
The Guild continues to work with the COBUG sub-committee on the issue. In the meantime, the Guild has taken steps to engage with its own membership in a number of ways.
First, it must be noted that the Guild only has the authority to determine for itself who MAY and who MAY NOT be a member of the organization. It has no other recourse against its membership, and has no authority over the members of other unions, or employers, or the general public. But, since the DG is a voluntary membership association, it does not have the same restrictions on its ability to police its own members that labor unions have. So, in the spring of 2018, the Council of The Dramatists Guild passed a resolution to revise its bylaws, creating a mechanism that would allow perpetrators of sexual harassment to be removed from the Guild.
You can read the text of that provision in the bylaws (Article IX, Section 5(d)) HERE.
To further the goals of the bylaws as currently revised, the Guild is in the process of making available a reporting mechanism that would enable someone to create a contemporaneous record of their abuse. It is important for anyone victimized by such behavior to create a written record that details their abuse, made as soon after the event as possible. Even if a victim does not want to use the report, or give it to anyone, creating it can help a victim process and clarify the experience while their memory is still fresh. It also creates useful evidence if a victim should later decide to report the abuse to the police, or to their union, or to the Guild, or to any other parties.
If a party wants to register their report with the DG, it will be reviewed by the Membership Committee to determine if further action is warranted, as outlined in the Guild’s bylaws. Such reports will be held as private and confidential, but any accused member is entitled to due process under the Guild’s bylaws and so, if a hearing is held to determine an accused member’s membership status, the complaint will be made available to the accused member so they can respond to it in their own defense.
If a Guild member’s complaint is not against a fellow DG member but, instead, is made against a member of another theatrical union, the Guild will attempt to work with that union’s leadership to make them aware of the complaint and request action on the member’s behalf. Please remember, however, that the Guild has no authority to require any third party to engage in any specific action.
In addition, it is important to understand that the Guild is not your attorney. We have no standing to bring suit, press charges, or otherwise engage in litigation or dispute resolution on your behalf. With regard to reports of abuse that are filed or registered with the Guild, they are held as private, confidential and anonymous, unless the reporting member requests otherwise, but such reports are not protected by any attorney-client privilege and, therefore, may be susceptible to discovery under a court order.
You will be able to create a report or make a specific complaint HERE.
The Guild is also researching the ability to create (or partner with another organization to provide) a technological response for predatory behavior in the form of an “information escrow.” This would allow DG members to register their report with the Guild, or a designated escrow agent or system, on a private and confidential basis, in order to determine if there are any “matching” complaints against the same party, providing both victims with corroborating evidence. This would turn a “he said/she said” situation into a “he said/THEY said” dispute.
Such escrow structures raise a number of potential issues, including, but not limited to: their expense (and who bears it); the legal liability they may create for escrow agents; the encryption and security of such sensitive information; the ability to extend “client-attorney privilege” to such communications; the ability to ensure anonymity and due process for both accuser and accused; and the need to create a broad enough network of complainants in order for the system to be truly effective, which requires participation by many other organizations and individuals, some of whom may face additional obstacles to participation. Despite these concerns, however, we continue to work toward a technological and industry-wide response to an issue that has not been satisfactorily addressed by the other means currently available.
What the Guild cannot do, and other limitations.
The Guild is committed to helping those who have been subjected to sexual harassment in the workplace, but there are limits to what we can do as a voluntary membership association in the face of a serious problem that cuts across all institutions in our society.
The Guild is not a labor union. It only has the authority to determine for itself who MAY and who MAY NOT be a member of the organization. It has no other recourse against its membership, and has no authority over employers, unions, or any other members of the general public;
The Guild has no obligations to non-members. However, both members and non-members may register a complaint against a Guild member to seek immediate action. The complaint will be held as private and confidential, but an accused member is entitled to due process under the Guild’s bylaws and so, if a hearing is held to determine an accused member’s membership status, the complaint will be made available to the accused member so they can respond to it in their own defense;
The Guild is not your attorney. We have no standing to bring suit, press charges, or otherwise engage in litigation or dispute resolution on your behalf. With regard to reports of abuse that are filed or registered with the Guild, they are held as private, confidential and anonymous, unless the reporting member requests otherwise, but such reports are not protected by any attorney-client privilege and, therefore, may be susceptible to discovery under a court order;
The Guild is not a technology company. We will save all sexual harassment complaints on a hard-drive in our offices, unconnected to the cloud or any other networked system, with the same level of encryption and protection we use for all of our other sensitive files, but there is no encryption system that cannot be hacked;
The Guild cannot announce or share the names or contact information of alleged perpetrators or victims, or make any public statements about unproven allegations; and
The Guild is not a social services agency. We do not have staff with the expertise or training to work with victims of sexual abuse. We will only accept written reports of abuse and will respond in writing, as requested and as required by its bylaws, and provide educational information and resources as we become aware of them, including the links provided below.
What you should do if you think you have been subjected to sexual harassment or abuse:
If you feel you may have been subjected to behavior that violates our bylaws, or is otherwise illegal or violates your rights, there are a number of initial steps to take.
- Create a contemporaneous physical record of the behavior, as soon after the occurrence as possible. Even if you do not want to report the behavior at that moment, creating the record can help you process and clarify the experience while your memory is still fresh. It also creates useful evidence if you should later decide to report the abuse to the police, or to their union, or to the Guild, or to any other parties.
You will be able to create a report or make a specific complaint HERE.
- Speak to a social services professional. The Guild is not a social services agency. We do not have staff with the expertise or training to work with victims of sexual abuse. We can only accept written reports of abuse and will respond in writing, as requested and as required under our bylaws. But DG members do have access to the services of the Actor’s Fund, which has a trained staff prepared to help you process the experience and advise you on your full range of options, both psychological and legal.
You can find out more about the Actor’s Fund HERE.
- You may want to consider retaining an attorney to advise you further.
Contact your state bar association to identify licensed attorneys who specialize in employment law and civil rights violations. To find a list of state bar associations, check HERE.
- If you feel the abuse you suffered rises to the level of a criminal act, you should contact your local law enforcement or victim’s services agency in your jurisdiction.
To find your local police department, check HERE.