It’s hard to avoid the Harvey Weinstein scandal in the news this week. For those that missed it, Weinstein, a movie executive and co-founder of Miramax and The Weinstein Company, was terminated after multiple women came forward with detailed allegations of sexual harassment and assault. While many of the women who have come forward were aspiring actresses and not company employees, at least one of those women was a 25-year-old receptionist. A recent New Yorker article states that Weinstein, the company CEO, made overt sexual advances toward this woman at least a dozen times. The young woman told the New Yorker she was “very afraid” of Weinstein, but she still reported the incidents to the company. It was reported that sixteen former and current executives and assistants at Weinstein’s companies had witnessed or had knowledge of his behavior (relating to various women), but it does not appear that the company thoroughly investigated or took action to properly address the reports and allegations.
When we read about these allegations, our thoughts were twofold: (1) Are these acts of workplace violence under the OSH Act; and (2) What challenges are companies facing that they feel are too big and powerful to tackle?
All U.S. employers are charged with having a safe workplace for employees – this includes being safe from workplace violence. OSHA defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.” The OSH Act’s General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act of 1970) requires employers to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” If an act of violence occurs in the workplace or if an employer becomes aware of threats or intimidation, the employer would be on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls (e.g., cameras, locks, lighting), administrative controls, and training.
While OSHA might be the least of The Weinstein Company and Weinstein’s legal and financial worries right now, this matter is an important reminder of a company’s duty to create a safe work place. That duty goes far beyond trip and fall hazards or exposures to toxins or other typical workplace safety concerns that come to mind. Of course, harassment claims are also of concern for employment law reasons (creating a hostile work environment, etc.), but workplace violence is on OSHA’s radar. Over the last three years OSHA has focused on workplace violence complaints and has actively investigated and taken action against employers. OSHA’s emphasis on workplace violence is evidenced by their whistleblower investigations where they have repeatedly found that employees’ rights have been violated when they are terminated or disciplined after reported threats of workplace violence. Hence, under the OSH Act, “getting rid” of an employee reporting workplace violence may only result in bigger problems – i.e., a whistleblower complaint.
On a metaphorical note, these allegations made us wonder, what big, scary problems are companies avoiding because they will affect their bottom line? Think about it. The Weinstein Company (and others) now stand accused of turning a blind eye to Weinstein’s conduct, conduct that has been described as an “open secret” in the industry. If that’s true, why did they do that? Weinstein was one of the most powerful media executives in the entertainment industry. The people around him were likely concerned that, without his leadership, the studio would suffer or fail. However, what if the people around him took action and worked to address Weinstein’s conduct in the 1990’s when the allegations first arose? Instead of letting the problem fester and grow (and, unless you take action, a problem like this almost always grows), what if they addressed the problem very early on, with discipline, rehabilitation or even termination? Then The Weinstein Company might not have had half their board resign, be stuck in a PR nightmare, and the fate of the company might not be in peril.
Who or what is your workplace “Harvey?” Is it equipment that you know is unsafe and should be upgraded, but the cost is too high? Are you ignoring a workplace violence issue because it seems too complicated and might result in a loss of business? Is your Process Safety Management program deficient? Will the changes you think are needed result in a loss of production?
Your workplace “Harvey” might be easy to ignore now, but what happens when the matter eventually comes to surface and someone is injured or worse? Your knowledge of the problem makes the company even more culpable – even more liable. We invite everyone to address their workplace “Harveys” today. If the problem seems too big or too difficult to handle, get help. There’s no “Harvey” problem that is too big or too difficult to handle if you get the right people and address it before it’s too late.