California statute broadly prohibiting sexual harassment outside the workplace
The Ninth Circuit Court of Appeals issued an opinion broadly interpreting a California statute on sexual harassment in business relationships other than employment, handing a win to female actor Ashley Judd against former movie mogul Harvey Weinstein. [Judd v Weinstein (9th Cir. 2020) 967 F3d 952] As jurisdictions around the globe are considering new laws to combat sexual harassment, the California statute may be one to review.
Enacted in 1994, Civil Code Section 51.9 prohibits sexual harassment in a wide variety of business, professional, or service relationships outside the workplace. The law provides a clause of action where one party to the business relationship made unwelcome sexual advances, sexual requests, or demands for sexual compliance by the other, the conduct was persistent or severe, and it continued after a request to stop. Plaintiffs must allege that they suffered harm or will suffer future harm -- economic loss or disadvantage, or personal injury -- from the defendant's actions. [Judd v. Weinstein, supra, at 956]
The 1996 version applicable to Judd’s allegations enumerated certain examples, including doctors, dentists, psychotherapists, attorneys, social workers, real estate professionals, landlords, building contractors and others. The statute expressly covers any relationship “substantially similar to any of the above.” Later, an amendment added movie producers to this list, but that version did not apply to Judd’s claim.
Female actor Ashley Judd alleges that as retaliation for refusing sexual advances by Harvey Weinstein, he falsely told the producers of the Lord of the Rings movies that she was “a nightmare to work with and to avoid her at all costs.” As a result, they did not cast her. Although these events took place a decade before the suit was filed, Judd’s lawsuit alleges that she only learned of the retaliation after the Weinstein story broke, thus triggering the delayed discovery exception to the applicable statutes of limitation. [Judd v. Weinstein (C.D. Cal. 2018) 2018 WL 7448914, *3-6]
Judd’s civil suit, pending in the trial court or “district” level of federal court, alleges defamation, intentional interference with prospective economic advantage and violation of California’s Unfair Competition Law,
Weinstein moved to dismiss all four of the claims alleged. The motion was denied as to all claims except the §51.9 claim. The court dismissed that claim, finding that the earlier version of the statute – did not include the relationship of producer and aspiring actress and that the amended version did not apply to events that took place before its enactment. [Id. at * 8-9]
The court entered judgment on the §51.9 claim separately so that its dismissal could be immediately appealed. [Judd v. Weinstein (C.D. Cal. 2019) 2018 WL 2881248, * 5] Normally, a litigant must wait until the entire case is dismissed before filing an appeal.
The influential Hollywood union filed an amicus curiae or “friend of the court” brief supporting Judd. [Brief of Screen Actors Guild --American Federation of Television and Radio Artists, Case 19-54499, ID: 11419670] So did the California Senate. [Brief of the California Senate, Case 19-55499, ID: 11417022]
The interpretation issue presented was one of first impression under state law, so the task of the Ninth Circuit was to predict how the California Supreme Court would decide it. [Judd v. Weinstein, supra, 967 F3d at 956]
Weinstein argued that the relationship between a movie producer and an actor seeking roles was not substantially similar to the examples. Judd argued that the key aspect of the listed relationships was imbalance of power. The court agreed:
[E]ach of the enumerated examples consists of a relationship wherein an inherent power imbalance exists such that, by virtue of his or her “business, service, or professional” position, one party is uniquely situated to exercise coercion or leverage over the other. . . . For example, teachers can exercise coercive power over their students because they control their students’ grades. Similarly, landlords can exercise coercive power over their tenants because they control access to the tenant's security deposits and, at least to some extent, access to the premises. [Id.]
The court ruled that the same potential for abuse of one's position exists in the producer-actor relationship. Judd described Weinstein as “a dominant figure in the film business and the gatekeeper to many desirable roles and film projects,” such that she “believed that alienating or offending him could damage her career.” [Id.]
Weinstein was uniquely situated to exercise coercion or leverage over Judd. And given Weinstein's influential and unavoidable presence in the film industry, the relationship would have been difficult to terminate “without tangible hardship” to Judd, whose livelihood depended on being cast in roles. [Id. at 957-958]
This same analysis can be applied by plaintiffs in future cases involving other relationships that involve power imbalances, but are not specifically listed in the statute.
Sara Church Reese is Principal at SCR Investigations Inc., whose practice is focused on independent investigations into reports of harassment, discrimination, retaliation and other workplace issues.