Published reports of Harvey Weinstein's predatory behavior spotlight the non-disclosure agreements that prevent whistleblowers and victims from telling their stories; Brandon Micheal Hall is the lead in ABC's new comedy "The Mayor." He's happy to combine politics and rap in his first big acting gig.
How Harvey Weinstein's 'open secret' was enabled for decades
New allegations against film mogul Harvey Weinstein came to light Tuesday in an investigation posted by The New Yorker magazine.
Thirteen women said that Weinstein had sexually harassed or assaulted them, including three women who allege that Weinstein raped them.
The New Yorker investigation, like The New York Times reporting before it, also highlighted how nondisclosure agreements and confidentiality agreements helped keep Weinstein’s alleged behavior under wraps for so long.
Weinstein’s behavior has often been referred to as an “open secret” in Hollywood. The New Yorker article reported that several executives and assistants at The Weinstein Company were well aware of what was going on and, in some cases, helped to enable it.
In a statement on Tuesday, Weinstein's spokeswoman said: “Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein. Mr. Weinstein has further confirmed that there were never any acts of retaliation against any women for refusing his advances. He will not be available for further comments, as he is taking the time to focus on his family, on getting counseling and rebuilding his life.”
One senior executive of The Weinstein Company mentioned in The New Yorker story is Irwin Reiter. The story quotes from LinkedIn messages he exchanged with a former employee, Emily Nestor, who was allegedly harassed by Weinstein.
Reiter is bound by The Weinstein Company’s non-disclosure agreement so he is unable to speak openly. His lawyer Debra Katz, a partner in a firm that represents plaintiffs in sexual harassment cases, spoke with John Horn about some of the legal issues around the Weinstein case.
How did Irwin Reiter end up being mentioned in The New Yorker article?
Irwin is executive vice president of accounting and he was thrust into the public domain and in The New Yorker article because one of the women who was sexually harassed by Harvey Weinstein turned over a set of LinkedIn messages between them where Mr. Reiter expressed great concern about her well-being. I can confirm that he did make repeated efforts to get The Weinstein Company to address this serious problems of sexual harassment.
The New Yorker article quotes a message that Reiter sent to Emily Nestor that says, "I fought [Weinstein] " three weeks before the incident with you. I even wrote him an email that got me labeled by him as 'sex police.' The fight I had with him about you was epic. I told him if you were my daughter he would have not made out so well."
That line about [Reiter] being labeled by "sex police" goes to the idea that there is retaliation for people who are reporting on what they believe to be inappropriate or unlawful behavior. There's a penalty. And that's what I think a lot of the actresses and young women who worked either with or near Harvey Weinstein reported, that they were afraid that if they said something there would be a penalty to their careers. Is that something that you think is an issue inside The Weinstein Company and Miramax?
Well, unfortunately, it's an issue everywhere. It's exactly why people don't come forward and don't stick their necks out, because they're afraid of career derailing retaliation. And there's been enough in the public reporting [to indicate] that when people did reject Weinstein's sexual advances, they weren't offered parts. We also know from the reporting that people who objected were given nominal settlements and they were managed out [of the company]. So this is not unique to The Weinstein Company. It's why sexual harassment is so pervasive and continues. When people with less power raise concerns or file complaints against powerful people — people who are perceived to be the rainmakers, the revenue generators, the creative geniuses — they're expendable, but the rainmakers are not.
What can you recommend to the whistleblowers, to the people who see and notice this kind of behavior, they may not be the actual victims but they know that it's happening, like you client? How do you make sure they have the ability to speak out and not lose their jobs because they are willing to take a stand?
Well, you've raised an important issue here. Until people who are not just the targets of harassment are willing to stick their necks out and report what they've seen and support people in the workplace who are being subjected to this kind of harassment, it typically becomes ahe said, she said [situation]. And, typically, HR departments purport to investigate these issues and come up with an inability to substantiate allegations, even in instances where there are recidivist harassers. So it is very important to build a culture where people are told that if you see something, you will not be retaliated against, and you will in fact be rewarded if you report these things in the form of increased esteem with the leadership of your company, your institution. But the tone has to be set at the top.
Harvey Weinstein has said earlier this week that all of these accusations are false. Isn't that de facto saying that these women are lying and isn't that a disparagement?
Yeah, it's a defamation and Harvey Weinstein is going to get himself in far further liability if he defames these women and suggests that they're liars. Because for people whose claims ran 20 and 30 years ago, if he's suggesting that they're lying— making this up now because they have alcohol problems or mental health problems or whatever — he is going to be stepping from a place of having no legal risk for the actual harassment, but new legal risk for the defamation.
In an essay for the Vox website, University of Chicago assistant law professor Daniel Hemel asked whether the confidentiality agreements that shielded Harvey Weinstein for years should be legal.
In fact, Hemel says, at least one type of confidentiality agreement that’s widely used by employers actually violates federal labor law. But employers often use it anyway, as did the Weinstein Company for every employee. And confidentiality agreements were part of the eight settlements that Weinstein reportedly paid to his apparent victims.
Hemel spoke with John Horn to explain nondisclosure agreements and explore the question of their legality.
What are confidentiality clauses or agreements?
Confidentiality clauses come in two flavors. We have one type of confidentiality clause that an employer will force employees to sign upon the beginning of the contractual relationship [that] all employees need to sign. And that might say something like, as in the Weinstein case, I won't speak publicly or privately in a way that might disparage or damage the reputation of the company or any of its employees.
A second type of confidentiality clause appears in the context of settlement agreements. This is after an employee or ex-employee brings a sexual harassment claim, the employer will say, We'll settle it, we'll give you a monetary payment, as long as you promise not to speak about it.
Can these types of confidential agreements sometimes benefit victims?
There are a few potential benefits. One, the victim might value confidentiality herself or himself. She might not want to be accused of money-grubbing by others, she might not want this to perhaps make a future employer uneasy about hiring her. Another potential benefit to the victim of the confidentiality clause is that usually they're two-sided — so they're going to prevent Weinstein from spreading false stories about his interaction between him and his employee or ex-employee. And third, she might be able to extract a larger payment from Weinstein with a confidentiality clause. So he might say, Hey, I'll pay you $100,000 to walk away, but $1 million to walk away and stay silent about it.
Is there a way to argue that these agreements perpetuate bad, potentially illegal, behavior because they keep the information from getting out?
I think there is a very strong argument for states acting to prohibit these confidentiality clauses in settlement agreements, but to my knowledge no state has passed a blanket prohibition on confidentiality clauses in contracts settling sexual harassment claims.
So confidentiality clauses are legal?
They are generally illegal in the context of blanket waivers when you enter an employment relationship [and agree] not to say anything critical about your employer. The National Labor Relations Board interprets The Wagner Act of 1935 as prohibiting those [except in the case of domestic workers, independent contractors, or supervisors]. The National Labor Relations Board does not interpret the Wagner Act of 1935 as prohibiting confidentiality clauses in settlement agreements.
Is the Harvey Weinstein case evidence that confidentiality agreements are being abused?
I think we had a lot of evidence of the abuse of confidentiality clauses in sexual harassment settlements before the Weinstein case. We saw this in the Fox News case. Fox News used confidentiality clauses to allow Roger Ailes to allegedly continue harassing employees for decades. We saw these in the Herman Cain case that came to light during Cain's presidential bid. So I don't think we've learned anything dramatically new about confidentiality clauses from the Weinstein case, but this underscores just how disturbing these clauses are. And hopefully it will mobilize legislative action at the state level to stop the enforcement of these confidentiality clauses.
To listen to John Horn's interviews with Daniel Hemel and Debra Katz, click on the player above.
'The Mayor': Brandon Micheal Hall says playing a rapping politician is his ideal role
A celebrity runs for office in what seems to be a big publicity stunt for his career. But the plan works too well and said celebrity wins the election. Sound familiar?
If it does, that's just a case of art imitating life because it's the plot for the new series, "The Mayor." The story centers on a 27-year-old rapper named Courtney Rose who runs for office in his hometown to promote his music career, but then actually wins and has to deal with the responsibilities that come with his victory.
"The Mayor" stars Brandon Micheal Hall, Yvette Nicole Brown and Lea Michelle and was created by Jeremy Bronson, a television writer and producer best known for his work on "The Mindy Project" and "Late Night with Jimmy Fallon." Among the executive producers is Daveed Diggs — the Grammy and Tony Award-winning actor, rapper and singer who originated the dual roles of Thomas Jefferson and the Marquis de Lafayette in the Broadway musical, "Hamilton."
Diggs' influence on the show runs deep. The show's setting is in a fictional Bay Area town similar to the "Hamilton" star's hometown of Oakland. Hall, who plays the young rapper-turned-mayor, Courtney Rose, says that Diggs schooled him on Bay Area hip-hop:
He taught me about the Bay style. This is a specific way that they rap, the sound to it. It's — as they will call it — hyphy.
Hall plays the young mayor, having auditioned for the role just two years after graduating from The Juilliard School.
When Brandon Micheal Hall stopped by The Frame, he spoke with John Horn about going from singing in the church to landing the role on "The Mayor."
INTERVIEW HIGHLIGHTS:
On auditioning for Juilliard:
I did Caliban from "The Tempest" and I did "Joe Turner's Come and Gone" and I sang "If Ever I Would Leave You" from "Camelot." It was so bad. It's interesting because my first audition, the summer before, I'd just gotten back from a summer camp and I developed a plantar wart on the bottom of my foot. It's the worst, horrible thing you can ever feel. And so I went into the audition. I was the first one to go up in the day. [Playing] Caliban was a very physical piece, so I jumped up on a chair and my plantar wart hit the chair and I just screamed and I fell flat-faced on the ground. I think they thought it was part of the audition! They were like, This guy is really getting into this role! And so I'm laying on the ground and I'm thinking to myself, Okay, this can either make or break this audition. I'm either going to get up and continue or this is going to be it. So I incorporated it into the audition and I was number seven on the callback list. They luckily called me back.
How growing up in the church influenced his acting career:
I sang in the church. My mom's a preacher and she was also part of a music group that would travel from South Carolina to Georgia and then back up to North Carolina then back down to South Carolina to sing. So my sister and I were very engulfed in the church and that's why I got my first real experience of theater. The church was the moment where I saw a preacher take this ancient text and saw an entire audience be moved and engulfed by his words and his truth and would talk about it days and days afterward and how it impacted their lives. And me being a person of forward-thinking, always trying to create new things, I was like, How can I do that? What can I do — without becoming a preacher? And acting just fell into my life and that's how I got bit by the bug.
How his role on "The Mayor" hits all the right notes:
Honestly, I had this conversation with a friend of mine in New York City ... I was like, I really want to do something on a political scale because everything is happening so fast in the political world right now. This is my moment to break in and find another purpose to talk about these social issues. And so I was telling him, I want to do something where I get to rap, I get to be a politician. And I tell you, no lie, those were the exact words. And then ["The Mayor"] comes out.
How present Donald Trump's presidency is in the show:
It's very present. The artistic side of the show is that we're not trying to promote or to give any time of ownership to Donald Trump and his presidency. What we're trying to do is create a world in which the youth and people who are active can see someone who is trying to make a change, someone who is fighting for the community and see that positivity on the screen and say, Okay, if he's doing this — if ABC is taking the initiative to put this type of show out — then that means I have no reason not to want to be active in my community as well.
On his character, Courtney:
What's that great quote from "Spider-Man"? With great power comes great responsibility? That is, I believe, our purpose in life, to create this world better for the kids who are coming up. And right now there's so much chaos and stuff that is going on that we have to find a way to pinpoint the things that we want to talk about. And to put those out into the world and say, Look, this is what's going on. Let's not banter about it. Let's find a solution to the problem. And that's what Courtney does.
On working with Daveed Diggs:
It's a blessing because Daveed is like a big brother to me. Daveed worked on "Hamilton" which ... is a cornerstone of art that will be talked [about] for generations and generations. To have him every weekend, either Skyping or in the studio and to converse about hip-hop and how it's relevant to today and what it means for our communities, it's a blessing. He imputes so much into me daily that it makes this job a lot easier.
What Diggs taught him about Bay Area rap and hip-hop:
He taught me about the Bay style. This is a specific way that they rap, the sound to it. It's as they will call it hyphy. It's very hype. It's very different. It's very original. They find different ways to break up the bars.
They just rhyme on a completely different level. In the south, we have a set rhyme that we rhyme too. But to get into that world of Oakland and the Bay Area, Daveed has been able to help channel me into that.
On working with show creator Jeremy Bronson:
Jeremy writes as if you can put it to a beat and that's where the comedy comes in play. Comedy is in this set world, in this set structure of, Here's the movement, here's the movement, and punchline, boom! And if you don't hit it spot on, then the comedy won't come ... Just allow it to just roll off the tongue. And so with Jeremy Bronson, to sit down and decode his script and finally get to a place where it's very seamless — where I feel like I'm the head of the mastermind — that's just a conversation that's constantly ongoing.
To hear John Horn's full interview with Brandon Micheal Hall, click on the player above.