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Exploring Legalities That May Have Enabled Harvey Weinstein's Actions


After dozens of accusations of sexual harassment and even assault came to light, movie mogul Harvey Weinstein was fired from the company he co-founded. Well, now the entertainment website TMZ reports that Weinstein's employment contract with the Weinstein Company included a clause setting fines in the event that he breached the company's code of conduct. Now, NPR has not seen the contract or confirmed this. We wanted to explore the legal framework that allowed or enabled Weinstein's actions for decades. Beverly Davis is an entertainment and employment lawyer. She used to work on NPR's own legal team, we should say. She now represents TV production companies and joins us on Skype. Beverly, good to reconnect. How are you?

BEVERLY DAVIS: I'm doing well. How are you, David?

GREENE: I'm good, thank you. Well, thanks for helping us try and understand this. I can't stress enough we haven't confirmed what is in Weinstein's contract, but - but reports suggest some kind of clause spelling out that he could possibly keep his job even in the face of sexual harassment allegations? Would - would that be unusual?

DAVIS: It is kind of unusual if the allegations are substantiated. And what it sounds like he has in looking at the TMZ article is just a regular morals clause. In - in a regular morals clause, it says if the employee does something to bring ill repute upon the company then the company has the right, usually, to terminate that employee. What makes Harvey Weinstein's morals clause interesting is that termination is not the company's ultimate remedy. In his, if what TMZ is reporting is true, the remedy is a series of payments depending on the number of allegations and the number of settlements and judgments that he has against him.

What I'd be interested in seeing - whether I'm the defense attorney or the attorney for the Weinstein Company - is, one, the rest of the contract because as we all know, context matters.

GREENE: Right.

DAVIS: But also the code of conduct because sometimes code of conducts do not include the sexual harassment policy. Sometimes sexual harassment and discrimination are deemed important enough to warrant their own policies. So I'd be curious to see what the code of conduct said.

GREENE: OK. So - so you're saying that this contract could be different, but there are some things in here that seem typical when addressing something like sexual harassment in - in a contract and when talking about a moral code.

DAVIS: Absolutely.

GREENE: Well, I mean, some of Weinstein's accusers have alleged rape. If - if criminal charges would be filed, I mean, does the Weinstein Company face liability? Does he face liability? Would that be something that's even spelled out in a contract?

DAVIS: Well, typically in an executive contract, what's spelled out is if the executive is indicted or convicted of an offense, a criminal offense, then that executive of course would be terminated. Sometimes companies shy away from saying you'll be terminated immediately upon charges because charges are just that - charges. They're - they're if they're not substantiated, if the executive isn't ultimately indicted or convicted then some companies would say, hey, he's been vindicated. If he's acquitted, well, come on back to work. But it is - most companies do shy away from executives that bring trouble to their doorway.

GREENE: I'm just working through this, everything you've said so far, Beverly. It is possible that it is - it would be significant for the company to fire him before an - an ultimate possible indictment or conviction. It's possible he could argue that - that, you know, the moral code, when it comes up in the contract, it says that it would be fines and not a termination but that if an indictment came, that would be the moment when - when under his contract he could be terminated.

DAVIS: That's what TMZ is reporting. And what companies will often do is they'll suspend an executive or a leader pending investigation to see what the charges bear out so that they don't act prematurely in firing someone. But in this situation, it looks like that the only way that he could be terminated is if he was somehow convicted or indicted. So that - that's pretty interesting (laughter).

GREENE: All right. Entertainment labor lawyer Beverly Davis, also a member of NPR's legal team in the past. Beverly, we really appreciate your time. Thanks a lot.

DAVIS: Thanks for having me, David. Transcript provided by NPR, Copyright NPR.

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