Inside the Battle to Force Harvey Weinstein’s Lawless Hollywood to Change

So Weinstein’s ouster is a potential watershed moment for women in Hollywood, both in front of and behind the camera. Advocates are working to ensure that his fall also signals the fall of everything he stood for—a “lawless” Hollywood. And they are doing this in both cultural and very specific, legal ways—even trying to bring the power of the federal government to bear on the problem.

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A crucial part of what created Weinstein’s machine of sexual aggression and coercion against women was the culture that allowed it—something that is difficult to change completely in legal terms.

For instance, while Weinstein may have seemed like an ungovernable force, that’s in part because the body that could have exerted control over him—his company’s board—looked the other way. It’s surely not a coincidence that The Weinstein Company’s board was—and, even though some people have quit, remains—entirely male.

“It’s quite clear that so many people knew [about Weinstein], and knew a long time ago and people in power knew,” Kalpana Kotagal, a civil rights and employment attorney at the D.C. law firm Cohen Milstein, told me. (Earlier this year, she co-wrote an op-ed in Variety with Anita Hill about the need for Hollywood to embrace women and people of color.)

Thomas echoed this concern. “Harvey Weinstein worked for a company. He had an employer, and he had a board, and if they knew this was going on, that’s where the accountability needed to come in,” she said.

Weinstein is not the cause of Hollywood’s crisis. He’s a putrid, blistering symptom of it.

Having more women in positions of power in Hollywood would almost certainly increase that level of accountability. It could also prevent some of the repulsive ways women found themselves being used by Weinstein.

Ronan Farrow’s damning New Yorker article described how Weinstein would use a “honeypot”—a female executive or assistant who would be present at the beginning of meetings—as a way to lure victims. It goes without saying that aiding a monster in his abuse of helpless women is reprehensible, but this is also what happens when people are operating in service of the kind of unchecked, deranged patriarchy that festers when there aren’t enough women in positions of actionable power.

As much as it is an issue of workplace culture, though, it can be a legal issue as well. “One of the things we as litigators think about is, what are the practices that well functioning companies put into place?” Kotagal described. “In some way a culture shift takes time, but it starts with workplace practices that function as they should.”

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It can be hard enough to get justice for inappropriate behavior in a workplace setting, but when it comes to the entire entertainment industry, the legal battle gets even thornier.

Sexual harassment and abuse at the hands of men like Weinstein in exchange for jobs, as well as the refusal to hire directors because they are women, are both examples of the kind of sexism that violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating based on “sex, race, color, national origin, and religion.” But in institutions based on word of mouth, where decisions are made off the books and blackballing is a constant, looming threat, it is extremely difficult to build a Title VII case.

“It has been hard for the law to get traction in this environment because there are so many players,” Thomas, the ACLU lawyer, told me. These overlapping and interacting bodies include talent agencies, unions, studios, and funders. Between all of them, it can be difficult to pinpoint a specific, culpable party.

A culture where the void of governmental supervision has been filled by sexism (and racism and anti-LGBTQ and ableism)-fueled self-regulation only further discourages women from speaking out. They essentially have no recourse outside of a settlement wrapped in a box and bound by the neat little bow of a non-disclosure agreement.

But there are solutions. One of the most powerful—and, unfortunately, rare—examples of how advocates have been pulling the law into Hollywood is the currently ongoing legal battle over the lack of female directors in the industry.

It’s not a coincidence that Weinstein thrived in an industry where just 7% of the top 250 movies made in 2016 were directed by women—or that his all-male board of directors refused to hold him accountable. Hollywood may consist of several different overlapping parts, but the same sexism is at the root of each and every one of them.

The fight for female directors is by no means new. In 1979, female members of the Directors Guild of America (DGA) formed the Women’s Steering Committee, meant to address the lack of jobs offered to women directors. In 1983, the DGA filed a class action sex discrimination lawsuit against Warner Bros. and Columbia Pictures on behalf of the Women’s Steering Committee but the case was dismissed when a judge found that the DGA itself perpetuated sexism and “boys club” hiring practices. While the lawsuit did result in more women getting directing jobs, those numbers were stagnant again by the mid-1990s.

But in recent years, things have heated up.

“If you didn’t like it you couldn’t speak out or you’d get blacklisted.”

In 2015, the ACLU approached the Equal Employment Opportunity Commission (EEOC) with data and anecdotal evidence from 50 women who described being denied jobs as directors in film because of gender bias, asking the EEOC to investigate the industry and file charges. While the investigation has been confidential thus far, news did surface earlier this year that every major studio was in settlement talks with the EEOC regarding charges that they failed to hire female directors.

The woman who kicked all of this off was Maria Giese. Despite being a promising and successful filmmaker in the 1990s (her film When Saturday Comes, screened at Cannes in 1995), Giese said she stopped being hired for directing jobs due to what she felt was clear gender bias.

“If you didn’t like it you couldn’t speak out or you’d get blacklisted,” she told me. In 2013, she took her case to the ACLU, which then spent two years gathering data and evidence to prepare for the legal fight.

“If you have a system of cronyism, or you have a system of reciprocity and people doing favors for each other, then there’s no real hope of fair competition for women,” Giese said. “There’s no authentic meritocracy.”

Even a meritocracy needs a system in place to keep it in check. Otherwise, as we have seen, everything ends up operating on the lowest common denominators of ethics and behavior.

“It was based on a closed system,” Giese explained. “Business is done based on reciprocity, ‘I’ll do this for you, but what’s in it for me,’ and most women had very little to exchange for a job. So sex became a major currency.”

What does the fight to hire more female directors have to do with preventing another Weinstein? Everything. Thomas told me that if the settlement talks succeed, we could see a flurry of changes. Among them: hiring goals for studios or referral goals for talent agencies; discrimination training for executives and others with hiring power; and reporting requirements with detailed data on who was considered for various projects, who was eventually picked, and why. We could potentially even see the appointment of an equal employment opportunity officer to oversee hiring practices—a new sheriff in a lawless town.

“It could be an overall officer at a studio or network or it could be one that has to be assigned to every project as sort of a monitor, looking at who gets hired and assuring that there are diverse candidates considered,” Thomas explained.

While the reality of the Trump administration’s priorities could have an impact on the rigor with which the EEOC could enforce a potential settlement, Thomas said she is hopeful that the EEOC will maintain its dogged investigation and eventually focus on other aspects of sexism in the industry.

Because the EEOC is a federal agency, the settlements would be publicly filed, not buried under the non-disclosure agreements that have long silenced women in the industry. “Oversight by the government can assure that it’s not just lip service, but that the defendant that [the EEOC] has identified, whether it’s a talent agency, the network, or the studio, is abiding by these proactive measures,” Thomas said. “Those kinds of measures will require greater effort to recruit and hire hopefully women of color who are especially underrepresented.”

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Along with increased federal management in Hollywood, there are other internal measures that can be put into place. Kotagal has been working with Stacy Smith, the founder and director of the Media, Diversity, & Social Change Initiative at USC Annenberg, on an “equity rider”—a stipulation that A-listers can include in their contracts.

The hope is that stars, both in front and behind the camera, can leverage their power to demand better representation, help people like casting directors rethink secondary characters, and create an overall better pipeline for women, people of color, LGBTQ people, people with disabilities, and other marginalized communities.

But for others, such as Maria Giese, the remedies should go even further. “The thing that’s really important here is that we’re talking about doing something that hasn’t been done before and we have to think out of the box,” Giese told me. Among her bigger ideas: getting the issue in front of Congress.

“I’m glad that we have awareness. But awareness doesn’t translate into accountability in this system.”

Each of these solutions has potential for change, but given how much of the Weinstein scandal is embedded in our misogynist culture, the million dollar question is, will these regulations be enough?

“I think that powerful men remain immune from being held accountable for sexual violence,” Caroline Heldman, an associate professor of politics at Occidental College and research director at the Geena Davis Institute on Gender in Media, told me. “While we’re more aware of it now, we still don’t have incentives or systems in place to hold them accountable. I’m glad that we have awareness. But awareness doesn’t translate into accountability in this system.”

For Giese and others, the sexism that keeps women out of jobs goes far beyond an employment problem. It renders women behind the camera, women in front of the camera, and the women who consume American culture voiceless.

“We’re talking about the industry in the United States of America that largely forms our cultural narrative and contributes to the voice of our civilization,” Giese said. “The impact of entertainment media that gets created in Hollywood is so powerful and immense. [It’s] our country’s most culturally influential global export. We’re talking about the industry that is basically America’s propaganda machine, and women’s voices are shut out of it.”