When accounts of Harvey Weinstein’s harassment emerged, they reminded me of vignettes from harassment videos made by professional human resources trainers in the 1980s and 1990s.
A female employee would be invited to some nonwork location on a professional pretext (here, Weinstein’s hotel suite). Then the man would proposition the employee, and the woman would try to escape. The similarity to Weinstein’s alleged misdeeds end there, however, as harassment training generally wouldn’t depict actual sexual assault or a man emerging naked from the bathroom.
While these early harassment videos for the most part feel very dated, particularly in terms of the roles women tended to occupy, they actually offered a more complex depiction of sexual harassment than we see in current HR training sessions. Steeped in an environment of overt subordination, the older videos understood that sexual harassment, first and foremost, was an abuse of power that limited women’s employment opportunities in the workplace. Newer training, not so much.
Likewise, the accusations swirling around Weinstein risk morphing into just another tawdry sex scandal, rather than an indictment of the discriminatory Hollywood employment practices they represent.
I recently completed a study examining the content of harassment training programs from 1980 to 2016, which hadn’t previously been the subject of scholarly research. Older training materials are a reminder that harassment — like the Weinstein scandal itself — isn’t about sex so much as discrimination, inequality and power.
Sexual harassment and power
The harassment training industry got its start in the early 1980s in response to guidance from the Equal Employment Opportunity Commission, the federal agency responsible for enforcing Title VII of the Civil Rights Act.
The EEOC took its inspiration not from case law but an influential book by scholar Catharine McKinnon that recounted how sex was used to subordinate women in the workplace. The EEOC thus defined harassment in terms of sexual conduct, referring specifically to “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.” It argued such advances were unlawful when used to make employment decisions or when they unreasonably interfered with an employee’s work performance.
My study compared a small collection of 18 historical harassment videos and other training materials found in libraries to 56 more recent examples collected from law firms, professional trainers and public sources. I included the older methods as a baseline of sorts to understand why current practices look and feel the way they do.
Because the early materials were structured around EEOC definitions, they were all about sexual harassment and tended not to address other types, like racial or religious harassment.
In these early videos and other documents, sex and power were closely intertwined. Women were depicted answering the phone for important men who viewed them only in terms of their appearance.
This may be why the Weinstein story seemed familiar to me — it takes place within an industry where white men largely still control the levers of power, and everyone else is subordinate or invisible.
Early training videos portrayed sexual demands as a tax levied primarily on women in lower-level positions. Similarly, in Weinstein’s orbit, a talented male actor could get a part simply through casting. Women, meanwhile, had to pay extra.
Early training practices also understood that harassment does not require sexual attraction. It can just be another tool to exclude and marginalize. One early trainer described such behavior as a “malicious power play” where “on the surface, the behavior is about sex but the real behavior is anger, fear and power struggles.”
This too resonates with the Hollywood of today. Actor Terry Crews, who is African-American, recently reported that he was groped by an unnamed executive at an industry function.
The meaning of the assault was plain enough. This room is mine. You don’t belong.
Today it’s about civility, not rights
Many topics covered in the earliest harassment training are still covered today.
Current training continues to devote a disproportionate amount of content and attention to sexual conduct, even as the Supreme Court has moved away from the original EEOC definition and litigation has shifted to other types of harassment, such as race and religion.
Current training methods also frame sexual conduct differently. They lack the rights-based subtext that animated earlier practices. They still depict supervisors hitting on subordinates. But they also portray milder conduct that may not meet legal definitions of harassment, like marginally offensive compliments from the delivery guy.
Today, harassment is seen as less about rights and more about civility. Violating the company’s harassment policy is portrayed as a stigmatizing faux pas, like wearing cargo shorts to a court appearance or farting in an elevator. It might have seemed like a fun idea at the time, but you really should have known better.
In decoupling sex from equality, trainers somehow forgot the equality part and now rarely emphasize that the animating principle behind harassment law is to secure equal employment opportunity in the workplace. They remind employees not to make sexual or race-based comments at networking events but omit the importance of including women or people of color at the events in the first place.
As Yale Law professor Vicky Schultz argues, employers like to focus on sexual conduct because it’s convenient. It’s far easier to prohibit dirty jokes than to grapple with the complex barriers that women and other underrepresented groups face in the workplace.
Losing harassment in the sex
Hollywood’s condemnation of Weinstein was swift. He was fired from his own company and booted from the Academy of Motion Picture Arts and Sciences, which issued a statement saying that the “the era of willful ignorance and shameful complicity in sexually predatory behavior and workplace harassment in our industry is over.”
It was the right thing to do. But the academy’s promise not to be complicit in harassment is a low bar indeed. It does nothing to address the employment practices that led to an industry largely controlled by white men.
Like modern harassment training, it’s just too tempting to address the easy problem at the expense of the harder problem and the bigger picture. Hollywood is an industry where women make up only 7 percent of directors on the largest films. Where Asian actors like Aziz Ansari and John Cho are asked to play stereotyped ethnic roles with an accent. Where “Breaking Bad” actor Giancarlo Esposito was turned down from scheduled auditions when casting directors discovered he was black.
This ultimately relates back to Weinstein, who would not have been able to do what he did, for as long as he did, in a Hollywood where opportunities are more fairly distributed among those with compelling stories to tell.
This article has been updated to correct the name of the organization that ejected Harvey Weinstein from its ranks.
Elizabeth C. Tippett, Associate Professor, School of Law, University of Oregon
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