The reports are trickling in, but as of now what we know is that production of the hit show was suspended last week due to a complaint filed by one of the show’s producers about “inappropriate conduct” between two of the contestants, DeMario Jackson and Corinne Olympios. Tabloids report that the two had a graphic makeout session in the pool. Of course it’s incredibly unlikely that ABC would have cut ratings-magnet Bachelor in Paradise – which is all about graphic, impromptu makeout sessions between fan favorite cast members from past Bachelor/Bachelorette seasons – due to a little hanky panky. Such conduct is the whole point of the show, and it’s encouraged by the steady stream of alcohol supplied on set.
Reports that a producer filed a complaint can be interpreted in various ways. As you may know from reading the sexual harassment page on this site, a workplace complaint about sexual harassment can be based on witnessing offensive conduct – not just having it directed to oneself. For example, many sexual harassment complaints are based upon the plaintiff becoming uncomfortable over a supervisor showing naked pictures on their phone, viewing pornographic content in their presence, and so on. Here, it’s possible that the interaction between DeMario and Corinne was so over the top (there are reports that both contestants were naked and engaging in extreme acts) that the on-set producer could allege sexual harassment. The argument would be based on the fact that it was a condition of the producer’s job to film the interaction or otherwise experience it (they could not remove themselves and continue to do their job), and that this was not an anticipated job requirement. By effectively requiring the employee to stay at the scene, ABC was complicit in sexually harassing the employee. The strength of this argument depends largely on the specific facts of the incident. What conduct, exactly, were the two contestants engaged in? What are the reasonable expectations of an employee working on Bachelor in Paradise? How racy have past seasons of the show been? Could this kind of conduct have been reasonably expected? Did the employee complain, or ask a supervisor to leave – and was that request denied?
In first sending Corinne and DeMario home and later completely shutting down production, the network is covering all its bases in defense of the claim. ABC has two things to worry about here: legal liability and bad publicity (with the second no doubt more costly than the first). At the end of the day, “The Bachelor” remains family programming – it’s based on the fairy-tale of finding love and traditional courtship. Regardless of the open mindedness of today’s audience, if “The Bachelor” starts to toe the line of pornography, the franchise sinks. A publicly filed complaint by the producer detailing all of the acts and what exactly was happening on the set could toe the franchise over the line of family programming and into smut. ABC doesn’t want that. Better to shut down the season, settle with the producer under a settlement agreement that requires strict confidentiality, and leave it at that. The loss of money is less in the long run than the harm that could be done to the franchise in moving forward.
With respect to legal liability, without knowing more facts, it’s difficult to tell whether ABC could be found liable for sexual harassment. My inclination is that they would not. BIP has always been a fairly racy show, and with two of the wildest contestants in recent memory (Corrinne and DeMario) coming on, and alcohol flowing, it would have been reasonable to anticipate fireworks. Something similar happened between Chad and Lace in a previous season in the pool. Moreover, courts apply a standard to sexual harassment cases that requires the harassment to have been either “severe” or “pervasive.” The severe prong typically refers to physical contact, and the pervasive prong refers to many incidents. So, if there is touching, the harassment can have happened just once – and if it’s verbal, courts would look for many instances. Here, it sounds like there was only a single instance of the conduct (the interaction between Corinne and DeMario in the pool), and there is no allegation of physical contact with the producer. Moreover, the network employs the producer, not Corinne or DeMario. Therefore, the producer can’t make a claim against either of the contestants individually – and it’s difficult to see how the network becomes liable for their conduct (unless it required the producer to stay on scene as a condition of the job, as discussed). ABC has also made the appropriate moves in its defense by ending production and sending everyone home; the network can’t have been said not to have taken mitigating steps as soon as it became aware of what happened.
We will follow this story for further developments. In the meantime, it offers some interesting perspective on sexual harassment claims generally. If you were a victim of workplace harassment – even if you simply witnessed harassing events or conduct you were uncomfortable with, like the ABC producer – you may have a claim for sexual harassment. Contact us today for more information.