If proven, most of the accusations against Harvey Weinstein would constitute textbook sexual harassment. But most of the women who say he targeted them are not legally able to sue.
Those who say Weinstein targeted them in the 1990s and 2000s probably cannot sue for sex harassment because the statute of limitations has passed, attorneys familiar with harassment laws told TheWrap. Those women include Rose McGowan, Rosanna Arquette, Ashley Judd, Kate Beckinsdale, and Heather Graham. (McGowan, who says Weinstein raped her, received a settlement, according to the New York Times.)
But women who accuse Weinstein of fairly recent misconduct can still sue. Additionally, women who are too late to sue for harassment may still be able to sue on related grounds. And even employees who do not say they were propositioned by Weinstein can accuse him of creating a hostile work environment.
The disgraced mogul faces not just the possibility of civil lawsuits, but also possible criminal charges. He is being investigated by police in London and New York.
Weinstein first apologized for his conduct when the New York Times published the first report about his alleged sexual assault and harassment on Oct. 5. He has also denied subsequent accusations of rape in a New Yorker article, saying any sex was consensual and that he did not retaliate against anyone who rejected his sexual advances.
Women who say they were sexually harassed in New York, home of the Weinstein Co.’s Tribeca headquarters, have three years to file, CUNY Law School professor and sexual harassment expert Rick Rossein told TheWrap.
Sexual harassment victims in California have 300 days from the last date of harassment, Pasadena employment lawyer Randy Renick said. Many women said their interactions with Weinstein occurred at the Peninsula Hotel in Beverly Hills.
That means that it’s too late for former Weinstein Company worker Emily Nestor to sue. She told the New Yorker that Weinstein made repeated demands for sex when she worked as a 25-year-old temp at his Beverly Hills office in late 2014.
But actress Chelsea Skidmore, who told the Washington Post that Weinstein forced her to stand in front of a mirror as he masturbated next to her at the Peninsula Hotel in Beverly Hills in 2016, would have grounds to sue if the harassment occurred toward the end of the year.
Employees not harassed by Weinstein could sue if they suffered fallout from a hostile work environment he created, New Jersey employment lawyer Nancy Ericka Smith told TheWrap. Smith is best known for filing the 2016 sexual harassment lawsuit by former Fox News host Gretchen Carlson that led to the exit of her boss, Roger Ailes, and a $20 million settlement.
“Men cannot go around putting out their d—s in the workplace,” Smith said. “If his come-ons make it difficult to come to work, if it made the work lives of his assistants difficult, that violates New York and California law.”
Hostile work environment and demanding sex in exchange for a job are both considered sexual harassment, Smith said.
Renick suggested that women who were harassed but are too late to file may be able to pursue other claims, such as infliction of emotional distress or invasion of privacy, if the violations occurred in the last two years.
Among those who could sue on these alternative grounds in California is an assistant who said that Weinstein coerced her into giving him a massage at the Peninsula Hotel in 2015 when he was nude.
The accusations against Weinstein look like a checklist of sexual harassment violations in California and New York. The laws cover supervisors, job applicants, and workers, both inside and outside the office.
California sexual harassment law prohibits “verbal abuse of a sexual nature” and “physical conduct” such as “touching, assault, impeding or blocking movements.” It also bans “offering employment benefits in exchange for sexual favors,” and “taking or threatening retaliatory action after receiving a negative response to sexual advances.”
While an act of sexual assault or sexual battery could be pursued criminally, women often prefer to sue under civil sexual harassment laws because the “criminal process is so difficult,” Rossein said.
The state of New York‘s sexual harassment law bans “sexually offensive remarks or jokes,” “unwanted touching or groping and “coerced sex acts.”
Federal law prohibits sexual harassment defined as “unwelcome sexual advances” and “requests for sexual favors” if these actions “explicitly or implicitly affects an individual’s employment.” The deadline for filing a federal claim is 300 days after the last harassment in California or one year from the last harassment in New York. A sexual harassment lawsuit can be filed in state or federal court, depending on whether the victim claims violations under state or federal law, or a combination of both, Rossein said.
Former Weinstein Company temp worker Nestor called Weinstein’s demand for sex in exchange for a mentorship “textbook sexual harassment.”
Nestor is right, Renick said.
“A quid pro quo harassment, saying I want sex for your job, is unlawful under state and federal laws. It is hard to imagine a more clear violation of anti-discrimination laws,” he said.