Labor / Employment, On The Job

Brendan Fraser And Sexual Harassment

Conduct like that alleged by Fraser shouldn’t happen, whether it’s at a Hollywood luncheon or in the workplace.

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Brendan Fraser (Photo by Frederick M. Brown/Getty Images)

GQ published an article on February 22 titled, What Ever Happened to Brendan Fraser? I saw the article on Reddit and read it because I genuinely wanted to know what had, in fact, happened to Brendan Fraser. I remember Fraser from titles like Encino Man, The Mummy, and a lot of other movies from my adolescence. If you were around in the 90s, you remember that he was seemingly ubiquitous.

And then, suddenly, he wasn’t.

The GQ article discusses several factors leading to Fraser’s fade from the spotlight, most of them not surprising or eyebrow raising. But the factor that I didn’t expect at all was alleged male-on-male sexual harassment against Fraser. This article was the first time Fraser made his allegations public.

According Fraser, in the summer of 2003, he was at a luncheon held by the Hollywood Foreign Press Association, the organization that hosts the Golden Globes. As Fraser was leaving the event, he claims that Philip Berk, a former president of the Association, flagged him down. Then, as alleged by Fraser: “His left hand reaches around, grabs my ass cheek, and one of his fingers touches me in the taint. And he starts moving it around.” Berk denies Fraser’s account, calling it “a total fabrication.”

Fraser relays in the GQ article that in that moment he was “overcome with panic and fear.” Later, after digesting what happened, Fraser claims he “became depressed,” and that the experience “made [him] retreat. It made [him] feel reclusive.” The article claims this incident was the “final piece” to the decline of Fraser’s acting career.

This got me thinking: If this had happened in the workplace and Fraser was grabbed in the same manner he alleges by his boss, would Fraser have had a viable sexual harassment claim (assuming his claim was timely, etc.)? A lot of people might assume yes, absolutely. But I’m not so sure.

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Courts routinely repeat that they are very reluctant to possibly turn civil rights laws into “general civility codes” for the workplace and, in some cases, judges seem more likely to write off allegedly harassing behavior of men against other men as essentially “boys being boys.” And a lot of times that’s exactly what it is: men bantering back and forth or horseplaying until someone takes it too far.

The legal standards plaintiffs must satisfy in harassment cases are therefore relatively high, especially in male-on-male harassment cases. One of the things plaintiffs must show is that the conduct they’re alleging was either severe or pervasive. Since Fraser only claims one incident occurred, he’d have to establish that the one incident was sufficiently severe to maintain his claim.

Is one instance of male-on-male taint grabbing objectively severe? There are a lot of cases in which men touch other men in similar ways (even multiple times in some cases) and the courts have found that the actions were not objectively severe enough to sustain a harassment claim. And while the courts do take into consideration the subjective severity of the conduct from the plaintiff’s perspective, most of the focus is on how the conduct is viewed in the larger context of reasonableness from a societal perspective.

Further, even though federal law protects men against sexual harassment, a plaintiff must also prove that he was harassed “because of” his gender. There are generally three ways an employee can do so: (1) show that the harasser sexually desires the victim; (2) show that the harasser displayed hostility to the presence of all men in the workplace; or (3) show that the harasser’s conduct is motivated by a belief that the victim does not conform to gender stereotypes. I didn’t read anything in the GQ piece suggesting that Fraser had evidence of any of these things.

With these hurdles in place, I don’t think that the conduct Fraser is alleging would support a harassment claim before most courts if it had occurred in the employment context. I’m not downplaying Fraser’s allegations or saying that he shouldn’t have brought them to light. I’m just highlighting that conduct many people may assume would be actionable might not be under the current state of the law.

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At the end of the day, conduct like that alleged by Fraser shouldn’t happen, whether it’s at a Hollywood luncheon or in the workplace. It does real damage to people’s lives. Like Terry Crews’s allegations of male-on-male harassment, maybe Fraser’s claims in the article are shedding light on a problem that’s more prevalent than we all realized. Maybe coming forward with his claims will help prevent similar conduct in the future.

In any event, I hated to read about Brendan Fraser’s allegations. He seems like a nice guy who had a rough run of things but is making a comeback. I wish him all the best!

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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