Weinstein Sexual Harassment Suit Is Revived

Actress Ashley Judd’s sexual harassment claim against movie mogul Harvey Weinstein was reinstated after an appellate court held that a recently amended sexual harassment law “plainly encompassed Judd and Weinstein’s relationship” when the harassment occurred. The U.S. Court of Appeals for the Ninth Circuit explained that “their relationship consisted of an inherent power imbalance wherein Weinstein was uniquely situated to exercise coercion or leverage over Judd by virtue of his professional position and influence as a top producer in Hollywood.” ABA Litigation Section leaders predict that the court’s concern about power imbalances in professional relationships will be mirrored in decisions and laws around the country as judicial systems and legislative bodies grapple with how to protect individuals from sexual harassment.

Aspiring Actress Accepts Meeting with a Producer

Sometime in late 1996 or early 1997, Ashley Judd allegedly met Harvey Weinstein at a Beverly Hills hotel. At the time, Judd was a young, aspiring actress just starting in the entertainment industry. She had recently landed a role in a film produced by Weinstein’s media company, and Weinstein asked Judd to attend a breakfast meeting. Judd accepted the invitation hoping that she might land new roles as a result.

Judd claimed that when she arrived, she was escorted to a private hotel room where Weinstein opened the door wearing only a bathrobe. After a short conversation, Judd alleged that Weinstein tried coercing her into massaging him and watching him shower. Declining, Judd promptly left and later told her friends she feared Weinstein would attack her.

After this incident, Judd claimed that Weinstein portrayed her as difficult to work with and advised his producer counterparts to avoid hiring her. The director and producer of The Lord of the Rings was apparently so swayed by Weinstein’s comments he refused to hire Judd as an actress for the movie series. In 2017, that director gave a public interview explaining that Weinstein’s comments about Judd had caused him not to cast her in the series.

Judd Files Suit Against Weinstein

Judd filed a lawsuit against Weinstein the following year based on the director’s new disclosures in the 2017 interview. Judd sued Weinstein for sexual harassment, defamation, intentional interference with prospective economic advantage, and unfair competition, stating that her refusal in his hotel room led her to lose acting opportunities. Weinstein denied her claims and pointed out that his production company hired her for other films.

The district court dismissed Judd’s sexual harassment claim based on its interpretation of California Civil Code section 51.9, which provides a civil cause of action for sexual harassment in non-employment relationships. When it was originally enacted in 1994, the law covered business, service, and professional relationships that a person might have with a doctor, dentist, lawyer, social work, teacher, trust officer, banker, real estate agent, landlord, or “substantially similar” relationships. A 2018 amendment in response to the #MeToo movement extended the law to relationships with investors, elected officials, lobbyists, and directors or producers.

Weinstein moved for summary judgment arguing that his relationship with Judd was not “substantially similar” to any of the listed examples. The district court agreed and found that Judd’s relationship was not covered under the original text version of the law. The court also found that the 2018 inclusion of “director or producer” did not have retroactive effect.

Judd Appeals Dismissal of Her Claims

On appeal, Judd’s attorney argued that dismissal was improper, even without a retroactive application of the 2018 change, because the statute covered “business, service, or professional relationships,” which would have been descriptors for Judd and Weinstein’s relationship in late 1996 or early 1997. Weinstein’s lawyer argued that Judd did not have a professional relationship with Weinstein at the time of the alleged hotel incident and that the 2018 amendments including director or producer could not be applied retroactively.

The Ninth Circuit reversed the lower court’s ruling and reinstated Judd’s sexual harassment claim. The court noted that “their relationship consisted of an inherent power imbalance wherein Weinstein was uniquely situated to exercise coercion or leverage over Judd by virtue of his professional position and influence as a top producer in Hollywood.” That power imbalance was “the key element common to every example in the statute.” The appellate court concluded that Judd’s allegations were sufficient to consider her relationship “substantially similar” to the statute’s enumerated categories.

Accordingly, the Ninth Circuit held that the district court had prematurely dismissed Judd’s claim and remanded the case for further proceedings. However, it declined to consider “whether Judd and Weinstein’s relationship was in fact an employment relationship outside the purview of section 51.9,” reserving that question for the trier of fact.

Efforts to Protect Can Lead to Ambiguity

Section of Litigation leaders note that the appellate court’s decision is part of an ongoing effort to grapple with the complicated issue of sexual harassment through the courts and legislature. “Section 51.9 recognizes that sexual harassment is not limited to the employment context, and that the imbalance of power that arises out of an employment relationship can very well be present in business relationships,” observes Kelly M. Matayoshi, San Francisco, CA, member of the Section’s Membership and Marketing Committee. “Without section 51.9, there would be little protection or redress for scenarios where everyone knows sexual harassment is prevalent,” Matayoshi notes.

“Over the past few decades, employers have sought to narrow the definition of employee or employer or the definition of the employment relationship to ensure that employers remain unregulated by labor laws. Statutes such as these show a political demand to ensure that disempowered individuals in business relationships do not have to suffer from sexual harassment,” adds Anne Marie Lofaso, Morgantown, WV, member of the Section's Book Board.

Both Matayoshi and Lofaso agree that the statute in effect at the time this case was decided was clear as to which relationships are covered—those with a “business, service, or professional relationship” between the parties. However, “the current version of section 51.9 adds situations where ‘the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship,’ and I think this adds more ambiguity,” opines Matayoshi. The statute’s further requirement that the plaintiff must have suffered or will suffer some type of injury tempers this addition, Matayoshi continues.

Helping Clients Identify and Address Imbalances in Power

Section leaders note that words and behavior matter in professional settings. Dynamics, requests, and comments can often create an imbalance in power, so people should remain vigilant and cognizant of their audience, Matayoshi cautions. Seeking outside training, mentors, or a professional agency to aid clients as they navigate business relationships might also help lawyers create an equal playing field, Lofaso advises.

The Ninth Circuit’s decision received more time in the headlines than usual, due in part to the parties to this case. Harvey Weinstein’s fall from grace and power materialized over the last few years, culminating in a 23-year prison sentence for sex crimes—which he is currently serving out at a maximum-security prison in upstate New York. While both Matayoshi and Lofaso agree that Weinstein’s name recognition created more attention for this case, they do not believe it affected its outcome.

“The fact that Harvey Weinstein was involved makes the imbalance of power in that relationship more stark and easier to demonstrate. However, I think the decision would have been the same regardless,” Matayoshi states. Judd now has the opportunity to present her case in the lower court, Lofaso notes. Beyond the celebrity-tinged publicity, “perhaps this case stands for the proposition that an actor can have his or her day in court even against a less powerful producer,” she concludes.