The Casting Couch Is Not Consensual: How a Coerced Sexual Relationship Constitutes Sexual Harassment Under New York Law

The term “sexual harassment” is commonly associated, in the public’s imagination, with certain overt acts that fail almost any test of basic decency. These acts might include unwanted touching or groping, or an ongoing pattern of sexual remarks or overtures that are clearly unwanted. The legal definition of sexual harassment, however, applies to a much broader range of behaviors, some of which are finally receiving public scrutiny. A key requirement of a sexual harassment claim is that the alleged harasser’s behavior is “unwelcome.” If a complainant appears to consent to some form of sexual activity, does that negate the “unwelcome” element of a sexual harassment claim? As we have learned from recent allegations out of Hollywood, not necessarily. Consenting to sexual activity for the sole purpose of obtaining or keeping employment, or accessing greater employment benefits or perks, is not what the law means by “consent.” It still constitutes New York sexual harassment under federal and state law.

The Equal Employment Opportunity Commission (EEOC) identifies two main categories of sexual harassment: quid pro quo sexual harassment and hostile work environment. A supervisor commits quid pro quo sexual harassment when they request or demand sexual activity in exchange for a job or various features of a job, or under a threat of firing. A single incident can constitute quid pro quo sexual harassment if it is severe enough. An individual who submits to demands made in this context is not necessarily acting entirely of their own free will, since the cost of refusing might be the loss of their livelihood.

The idea of exchanging sex for job opportunities is quite familiar in Hollywood. Specifically, the “casting couch” involves producers or directors giving roles to actors or actresses who have sex with them, often accompanied by threats against their careers if they refuse. This idea has become ingrained in Hollywood, officially condemned while also frequently overlooked. The producer at the center of the current controversy has even attempted to use this idea as a defense against the allegations, stating that he “came of age” in an earlier time, “when all the rules about behavior and workplaces were different.” He specifically mentioned the 1960s and 1970s, a time before the U.S. Supreme Court had fully recognized sexual harassment as sex discrimination in violation of Title VII. The sort of behavior described in the many allegations against this producer has always been improper and abusive. The key difference is that now, the targets of the harassers have more of a voice and are finally able to speak out.

The “casting couch” is not limited to the entertainment business. Some supervisors and managers in nearly every type of business have demanded, either expressly or implicitly, sexual activity from job applicants as a condition of getting a job. Acts like this may constitute sexual harassment even if the complainant consented to some or all of the demands, as long as they clearly stated that the conduct was “unwelcome.” The Supreme Court itself has held that the focus should be on “whether respondent, by her conduct, indicated that the alleged sexual advances were unwelcome,” as opposed to “whether her actual participation in sexual intercourse was voluntary.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986).

The knowledgeable and experienced sexual harassment lawyers at Phillips & Associates represent job seekers, employees, and former employees in New York City, advocating for their rights in claims for sexual harassment and other unlawful employment practices. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation to discuss your case.