A judge just ruled that Ashley Judd can proceed with at least part of her lawsuit against Harvey Weinstein. How do those of us who are not Hollywood stars or executives, relate to these people and their issues? Fundamentally, this case is about employment law issues, sexual harassment and retaliation to be specific. Ashley Judd, while very famous and highly paid employee, is arguably, an employee — at least for purposes of this discussion. The troubles Harvey Weinstein faces can plague any employer who behaves as he did — even if on a smaller scale. I wrote about Harvey Weinstein previously. You can find that post here. I’ve written about sexual harassment and retaliation previously. You can find some of those posts here and here. This post focuses on that and on ancillary issues that can follow all employers in the wake of harassment allegations. As always we’re going to see what we can learn from others’ mistakes, so read on…
(image from pagesix.com)
I’ll get to how this case is different from other Harvey Weinstein cases in a bit. First, here’s what went down:
About 20 years ago, according to the Hollywood Reporter, Weinstein made sexual demands of Judd in a hotel room. Only when she agreed that if she won an Academy Award that he could “touch” her, was she able to leave. Fast forward to 1998. Ms. Judd was in serious negotiations for a big role in Peter Jackson’s “Lord of the Rings”, when either Weinstein or someone else at Miramax (Weinstein’s company) allegedly told the director that Ms. Judd was “a nightmare to work with” and should be avoided “at all costs”. Ms. Judd knew nothing about that alleged comment until she read a December 2017 interview in which Peter Jackson disclosed it. Jackson said that at the time he felt he had no reason to question what he was told, but that he had come to suspect that he had been given false information.
Ms. Judd ( who is also credited as being an impetus for the #MeToo movement) sued Weinstein in April, 2018, alleging defamation, sexual harassment, intentional interference with prospective economic advantage and unfair competition. She included allegations in her complaint that he threatened Selma Hayek and Uma Thurman’s careers when they rejected his sexual advances. Similarly, Mira Sorvino was allegedly up for the same role in Lord of the Rings and for the same reason did not get the role. Predictably, Weinstein moved to dismiss the lawsuit. In brief he argued that she waited too long to file her lawsuit, and that even if what she said was true, they didn’t add up to sexual harassment as defined by California law. He also argued that she didn’t show that she suffered significant harm by the alleged defamation. Yesterday, after oral argument of the motion, Judge Philip Gutierrez of the State Superior Court of Santa Monica, California, ruled that Ms. Judd could go forward with the defamation and interference claims, but dismissed the sexual harassment claim, sort of. I’ll explain why only “sort of” in a minute.
As for the statute of limitations (i.e. “you wanted too long and you missed the deadline”) argument, the judge said that at this stage, Ms. Judd need only raise a plausible inference that she wouldn’t have been able to learn about Weinstein’s statements to Jackson until she read the December 2017 interview, “even if she had conducted a diligent investigation” (as Weinstein argued she should have done). The judge also found that Ms. Judd’s statements, taken as true, are an adequate statement of a defamation claim, rejecting Weinstein’s arguments that his statements about “bad experiences” working with her were only “non-actionable” opinion. The judge didn’t stop there, adding, that “Judd “argues that she can prove these statements false because Defendant had no previous professional interaction with her and her short two-day experience working on the Miramax film Smoke (where she alleges that she did not interact with Defendant) was uniformly positive…The Court agrees with Plaintiff.”
As for the sexual harassment claim, Ms. Judd sued under California Civil Code, Section 51.9, and the judge indicated skepticism as to whether it “can ever properly be applied to a relationship between a potential employer and a prospective employee.” Looking at her one meeting with Weinstein to discuss possible movie roles, he said “the type of relationship of someone providing professional services on an ongoing basis — something that would actually be susceptible to sexual harassment in the workplace.” He did say, however, that the law was unsettled on this point and he gave her a month to file an amended complaint and to allege facts or law that support such a claim.
So how do all of these facts and procedural issues apply to non-Hollywood, less notorious employers?
Let’s start with the obvious. I’ve said this before. Employers need to take a strong stand — and then walk their talk– when it comes to sexual harassment. I will be the first to tell you that you should have anti-sexual harassment policies, compliant policies and anti-retaliation policies. I will be the first to tell you that your employees and managers should receive training. I will also tell you that if that’s all you do, it’s not enough. Everyone, starting with the head honcho needs to show through their behavior that they embrace those policies. That means not harassing. That means not retaliating. That means taking complaints seriously and investigating them and imposing consequences when someone is found to have committed harassment. That means monitoring your workplace by speaking with and listening to employees about their concerns, their interactions with management, making sure that the policies you were so careful to craft are actually being followed. That means not turning a blind eye when you do become aware of allegations.
Next, when an employee rebuffs sexual advances or complains of such behavior, retaliation can include interference with an employee’s attempt to find other jobs. If you are going to give references, one option is to direct such requests to H.R. and determine what those references will look and sound like. If you are going to give a negative reference be sure you either have a release from the employee or that you can back up those references– and proceed at your own risk. If you find out that anyone else is making statements about your (former) employees nip it in the bud. Let them know that such statements need to be cleared with H.R. or the CEO or whoever you designate — and impose consequences for those who do not comply. Similarly, anyone who retaliates in any way, needs to be disciplined. Employees need to know that you are serious about ensuring a harassment-free environment.
This is by no means an exhaustive treatment of the subject, but it should be enough to think about for now.
See you next week.
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