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Law would protect models regardless of independent contractor or employee status
Following news of sexual harassment scandals in the entertainment industry, a New York law has been proposed that would protect fashion models from sexual and other forms of harassment.
Although the recent headlines from the entertainment industry helped draw attention to the bill, it had actually been in the works for months before it was introduced, noted Sonya Rosenberg, an attorney with Neal Gerber & Eisenberg in Chicago.
New York State Assemblywoman Nily Rozic introduced the Models' Harassment Protection Act on Oct. 25, which would amend the state's anti-discrimination laws. "[W]e have reached a turning point" about "whether to accept sexual harassment as a norm or end the cycle by enacting protections and providing a path of recourse," Rozic said in a press statement. "No one should ever experience sexual harassment in or outside of the workplace."
Models generally have few workplace protections, explained Jean Schmidt, an attorney with Littler in New York City. Models usually work as independent contractors and therefore may not be covered by federal and state laws that protect employees from harassment and other forms of discrimination.
Rosenberg explained that a model could potentially have a harassment claim against his or her agency, but the agency may be able to argue, in some circumstances, that it doesn't "employ" the model, and thus should be exempt from the state's anti-harassment protections that extend to employees. "This bill, if it passes, certainly will make it easier for models to file actionable claims."
[SHRM Online HR Q&A: What are the different types of sexual harassment?]
Specifically, the bill would make it unlawful for a modeling entity to subject male or female models to harassment regardless of whether they are working as independent contractors or employees.
Schmidt noted that the proposed act would cover more than just sexual harassment. It would also prohibit harassment based on age, race, national origin, color, sexual orientation, sex and disability.
"In essence, the bill significantly broadens anti-harassment protections available to models, particularly the models who may not have a single employer but instead work numerous, various gigs as independent contractors," Rosenberg said.
Some businesses that use models might think the proposed law wouldn't apply to them because they are not a modeling agency, but the act would also apply to clients, Schmidt said. The act defines "client" as "a retail store, a manufacturer, a clothing designer, an advertising agency, a photographer, a publishing company, or any other such person or entity that receives modeling services from a model."
Modeling entities and clients would also need to make models aware of their rights under the act. They would have to prominently post a notice about the act and provide information about how to file a complaint.
The bill is only in the beginning stages of the legislative process, so it's hard to tell what will happen next, Schmidt said. But she noted that the bill is in line with state lawmakers' general efforts to provide greater protection for employees—particularly women.
Spotlight on Harassment
The recent spotlight on sexual harassment is likely to have a real impact in the workplace, particularly for those employers that historically may not have focused on this issue or may have incorrectly assumed that harassment complaints are unlikely to result in significant legal risk or exposure, Rosenberg said.
"It's important to point out that the attention on the issue started before the most recent news from the entertainment industry; we have been watching this play out throughout the past year," she added. "Many employers are reviewing their anti-harassment policies for compliance and taking steps to ensure that they are properly enforced when issues arise."
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