Learnings from Lizzo

Serious allegations have been made against Lizzo and her production company in America, which include abuse of power, harassment and weight shamming by three of her former backing dancers, but what would the potential claims be in England?

Lizzo is known for her summer anthems, body positivity and self-love. Therefore, many were shocked as the news broke of the serious allegations of workplace misconduct made against her in a lawsuit, which go in the face of the public image she portrays. Throughout the claim, the dancers recanted many stories of the hostile work environment, including where a dancer soiled herself as she was scared to ask for a bathroom break, made to perform sex acts with bananas and goading one dancer when she refused to engage in inappropriate touching.

Other dancers and a Creative Director who are not part of the lawsuit have endorsed the allegations in the lawsuit, confirming they shared the same experience. The lawsuit, lodged in California, claims Lizzo, her management team and dance captain, created a hostile work environment, accusing them of committing sexual harassment, religious harassment, racial harassment, disability discrimination and a failure to prevent or remedy the harassment.

Employees speaking up and holding individuals and employers accountable is something to be encouraged. Only by doing so, can an equal work environment be created, and unfair treatment removed. While at this stage, these claims have yet to be proven and remain allegations, lessons can be learned from the claim lodged. While we do not know the exact employment relationship between Lizzo, her management team and the dancers, if we look at the allegations in the context of the employment law of England and Wales, if it could be proven there was employment relationship, consideration should be given to the following:

Fire and re-hire

The claim also contained allegations that Lizzo required dancers to re-audition. Should the dancers be classified as employees this may be an act of firing and rehiring. While the act of firing and rehiring is not illegal itself, depending on the circumstances, other claims may be present. For example, individuals who have over two years employment, and therefore protection from unfair dismissal, may want to seek legal advice, as if the correct procedure has not been followed, or a fair reason given, there may be grounds for an unfair dismissal claim.

Vicarious liability

A number of the allegations made did not occur in what may be considered the dancers place of work, they did not take place in a stadium or dance rehearsal space. One of the more shocking incidents occurred in a strip club where it is alleged “Lizzo then turned her attention to Ms Davis and began pressuring Ms Davis to touch the breast of one of the nude women.” Employers can remain vicariously liable for the actions of their employees, outside of the work place. In order for vicarious liability to be established, two tests must be satisfied:

·         The relationship test: there must be an existing relationship between the employer and the individual who committed the complained of acts.

·         The close connection test: in order for the complained of act to be connected to the employer, it must be sufficiently related to the conduct authorised by the employer.

Therefore, vicarious liability is not limited to a wrongdoing committed within the course of employment but can also include wrongdoings which are closely connected to conduct authorised by the employer. As the argument could be made that the trip to the strip club in Amsterdam was a work sponsored event, it appears to be hosted by the employer with a large number of employees in attendance, the argument could be made that it was a work event, making the employer liable for the actions that night.

Discrimination

Discrimination occurs when an individual is treated less favourably due to a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religious or believe, sex or sexual orientation).  It can be committed in four ways:

a.       Directly – someone is treated less favourably due to a protected characteristic.

b.       Indirectly – rules are put in place which apply to everyone, but place those with a protected characteristic at a disadvantage.

c.       Harassment - someone receives unwanted treatment linked to a protected characteristic which creates a hostile and offensive environment and/or violates their dignity.

d.       Victimisation – someone is treated less favourably because they have complained about discrimination or harassment.

Taking the allegations against Lizzo as an example, if the dancers complained of the acts alleged, and then suffered a negative consequence as a result, i.e. not being required to perform at a show, this could constitute victimisation. It is important that not only discrimination and harassment is fought against in the workplace but also victimisation to. Removing victimisation from the work environment, will encourage others subjected to discrimination to speak up and the fear of negative repercussion will be reduced.

Abuse of power

While it is likely that a number of people will take the view that these dancers are grown adults, responsible for their own actions and choices, it would be remiss not to address the imbalance of power between Lizzo, her management team and the dancers. The dancers who brought this claim were reliant on Lizzo and her management team, just like everyone else, they require an income to live. When receiving directions from an individual of a much higher seniority level, junior employees often fear the repercussions of saying no or disagreeing, and occasionally this is taken advantage of. If this unwanted behaviour negatively affects an individual’s dignity or creates a hostile work environment, it may constitute harassment.

Mental health impact

Bullying, harassment and discrimination in the workplace is not only Illegal and but also demoralising. The serious effect of being subject to such treatment can be that an individuals mental health is negatively impacted and treatment is required. In these circumstance personal injury claims must also be considered.

Although these allegations against Lizzo are unproven and she is yet to respond, individuals who read the stories of the dancers and related to them, should consider seeking immediate legal advice. In the employment tribunal, individuals have just three months less one day since the last act to lodge their claim.

Written by Becci Collins, Solicitor Cole Khan Solicitors LLP