#TimesUp For Sexual Harassment Allegations Without Investigations

By: Stacy Skankey

Sexual harassment and assault allegations have taken over Hollywood headlines in the past few months. Dozens of Hollywood’s elite men have been accused of various forms of sexual misconduct.[1] This surge of allegations due in large part to the #MeToo movement. The #MeToo movement raises awareness of sexual harassment and has empowered women to remove sexual predators from the Hollywood scene.[2] Allegations of sexual harassment and assault should be taken seriously, but there is always the possibility of false claims. Some Hollywood men have pushed back on these allegations saying they are fake.[3]

Actors are generally deemed common-law employees, subject to at-will termination.[4] However, they often have several employment engagements at any given time and appear to be more like temporary employees with several short employment arrangements.[5] In a traditional employment context, if an employee is accused of sexual harassment there is typically an investigation and the employer is not able to discriminate against an accused individual for his/her participation in the investigation.[6] The Hollywood context of employment is very different. Due to the short duration of the employment, most accusations surface long after the employment has transpired. This forgoes the opportunity for an employer to hold a private investigation prior to legal action.

Most of the recent sexual harassment or assault allegations have come forward via social media or media outlets.[7] These allegations are public, having the accused face the court of public opinion, prior to an investigation into the matter. The public view tends to be guilty until proven innocent rather than the legal criminal standard, innocent until proven guilty.[8] Without an opportunity for an investigation into the accusations, many of these actors have lost their current jobs, endorsements or prospective jobs, all because of the public nature of the accusations. The court of public opinion, which includes prospective employers of actors, may discriminate against the accused without finding of guilt or liability, because they want to distance themselves from the accusations.

James Franco is just one recent example of an actor who has been accused by sexual misconduct. He has been accused by 5 women of various types of sexual misconduct.[9] All the accusations have been made via Twitter after James Franco, wearing a #TimesUp pin, won for Best Actor at the Golden Globe awards. Thus far, none of the women have filed legal action whether civil or criminal. Two of the women have held numerous interviews and made appearances on major news programs to discuss the events in question.[10] One woman said the she still has love for James Franco and all she desired was a public apology.[11]

James Franco has put himself in a peculiar spot as he denies the allegations while trying to continue his support for the #TimesUp or #MeToo movements. In interviews he said the allegations are incorrect, and yet, would like the women to be able to come forward with these allegations if they feel they need to.[12] These quotes where taken before James Franco failed to receive a nomination for the Oscars, his alma mater high school removed artwork he created for the school, and the New York Times cancelled his appearance.[13] The allegations against James Franco should be taken seriously and, if the victims felt inclined to, legal action should be taken. Alternatively, if these are false allegations against James Franco, his career has been severely damaged by these false claims and he may not recover.

Women’s rights attorney Gloria Allred encouraged Oscar voters to consider extrinsic factors when voting for Oscar nominations for acting, essentially telling voters not to vote for James Franco for Best Actor.[14] Days later, James Franco did not receive a nomination. It is speculated that this “Oscar snub” was due to the sexual misconduct allegations. Ms. Allred posted a video in which she giddily says, “there is nothing he can do about it.”[15] While Ms. Allred does not say James Franco’s name, it is apparent from context, she is referring to James Franco’s legal remedies for losing an Oscar nomination.

While James Franco cannot seek a legal remedy for losing an Oscar nomination, he can always seek a defamation action. In California, the standard for libel is false publication that “exposes any person to hatred, contempt, ridicule, or obloquy, causes him to be shunned or avoided, or [tends to] injure him in his occupation”.[16] New York has a similar standard, “[d]efamation is the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons”.[17] James Franco has lost support from the Hollywood industry over these accusations and has been featured in news segments relating him to other Hollywood sexual predators, some who have committed rape. If these allegations are false, there is no doubt that James Franco has been exposed to hatred, ridicule, injured his occupation, and induced an evil opinion of him.

All the sexual harassment and assault accusations have brought about change in Hollywood. The Screen Actors Guild – American Federation of Television and Radio Artists (“SAG-AFTRA”) released a Code of Conduct relating to Sexual Harassment.[18] Potentially these changes will help future conduct of Hollywood actors and how to deal with allegations. The Code provides for representation for the accused and an investigation into those accusations.[19] The Code hopes to change the Hollywood landscape of sexual misconduct. Having a union standard will help provide venues for victim’s voices and an opportunity for investigations of accusations.

[1] Maggie Mallon, Post-Weinstein, These Are The Powerful Men Facing Sexual Harassment Allegations, Glamour (Feb. 8, 2018), https://www.glamour.com/gallery/post-weinstein-these-are-the-powerful-men-facing-sexual-harassment-allegations.

[2] Id.

[3] Id.

[4] Noah B. Kressler, Using the Morals Clause in Talent Agreements: A Historical, Legal and Practice Guide, 29 Colum. J.L. & Arts 235, 248-49 (2005).

[5] Id.

[6] Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001).

[7] Mallon, supra note 1.

[8] Michael Rothman, Why ‘Innocent Until Proven Guilty’ May Not Apply In Hollywood Misconduct, ABC News (Dec. 14, 2017), http://abcnews.go.com/Entertainment/innocent-proven-guilty-apply-hollywood-misconduct/story?id=51646170.

[9] Alex Stedman, James Franco Accused Of Inappropriate Behavior By Five Women, Variety (Jan. 11, 2018), http://variety.com/2018/film/news/james-franco-accused-inappropriate-behavior-1202661115/.

[10] James Franco Accusers Speak Out About Sexual Misconduct Allegations, ABC News (Jan. 23, 2018), http://abcnews.go.com/GMA/video/james-franco-accusers-speak-sexual-misconduct-allegations-52543901.

[11] James Franco Accuser ‘I Still Have Love For Him’ But HE Must Apologize!!!, TMZ (Jan. 12, 2018), http://www.tmz.com/2018/01/12/james-franco-accuser-sarah-tither-kaplan-demands-apology/?adid=TMZ_Search_Results.

[12] Christie D’Zurilla, James Franco Says Actresses’ Sexual Misconduct Allegations Against Him ‘Are Not Accurate’, Los Angeles Times (Jan. 10, 2018), http://www.latimes.com/entertainment/la-et-entertainment-news-updates-2018-james-franco-says-actresses-allegations-1515605045-htmlstory.html.

[13] TMZ Live: James Franco: Oscar Snub Controversy, TMZ (Jan. 23, 2018), http://www.tmz.com/2018/01/23/tmz-live/?adid=TMZ_Search_Results; Associated Press, James Franco’s High School Removes His Art Amid Sexual Misconduct Allegations, Page Six (Feb. 1, 2018), https://pagesix.com/2018/02/01/james-francos-high-school-removes-his-art-amid-sexual-misconduct-allegations/; Ricardo Lopez, New York Times Says James Franco Event Was Canceled Due To ‘Recent Allegations’, Variety (Jan. 9, 2018), http://variety.com/2018/biz/news/james-franco-timestalk-cancelled-1202659239/.

[14] Gloria Allred Sags, Oscars Shouldn’t Go To Alleged Sexual Predators, TMZ (Jan. 21, 2018), http://www.tmz.com/2018/01/21/gloria-allred-award-shows-sexual-misconduct-oscars-sag-awards/?adid=TMZ_Search_Results.

[15] Gloria Allred James Franco’s Not Innocent ‘Til Proven Guilty…For Oscars, TMZ (Jan. 23, 2018), http://www.tmz.com/2018/01/23/gloria-allred-james-franco-oscars-nomination-snub-sexual-misconduct/.

[16] Cal. Civ. Code § 45 (2017).

[17] Franklin v. Daily Holdings, Inc., 135 A.D. 3d 87, 91 (N.Y. App. Div. 2015) (adopting Restatement (Second) of Torts § 558 (1979)).

[18] Code Of Conduct On Sexual Harassment, SAG-AFTRA (2018), https://www.sagaftra.org/files/sag-aftra_code_of_conduct_final.pdf.

[19] Id. at ¶ 4.2.