By Marjorie Johnson, J.D.
The actor’s reinstated claim alleged that after she rejected the movie mogul’s invitations to give her a massage or watch him shower in what was supposed to be a business meeting to discuss her aspiring career, he derailed her potential involvement in The Lord of the Rings films.
Actor Ashley Judd revived her sexual harassment claim against Harvey Weinstein asserting that he derailed her career after she rebuffed his sexual advances in a hotel room in the 1990s, in violation of a California law that imposes liability for sexual harassment in certain "business, service, or professional relationships." Reversing dismissal of her case, the Ninth Circuit ruled that the statute plainly encompassed her relationship with Weinstein at the time of the alleged harassment, which was substantially similar to the examples enumerated in the statute and consisted of "an inherent power imbalance" wherein the top Hollywood producer was "uniquely situated to exercise coercion or leverage over Judd." Moreover, a jury would need to decide whether the two were actually engaged in an employment relationship outside the purview of the statute (Judd v Weinstein, July 29, 2020, Murguia, M.).
Hotel room encounter. Sometime around early 1997, when Judd was still a young aspiring actor in the early stages of her career, she was invited to attend what she described as a "general business meeting" with Harvey Weinstein, then an influential and well-connected Hollywood producer. When she arrived at the Beverly Hills hotel where the breakfast meeting had been arranged, she was directed to his private hotel room where he was clad in a bathrobe.
Rejects advances. Instead of discussing film roles or her professional aspirations, Weinstein asked the actor if he could give her a massage. After she refused, he asked her to watch him shower, which she also declined. Believing that he intended to physically assault her, but also hoping to escape without angering a man who had the ability to end her budding career, she suggested that she would allow him to touch her only if she won an Academy Award in one of his films and quickly left the room. She claimed that it was not until almost a decade later that she would learn that soon after that fateful encounter, he derailed her acting career.
Repercussions come to light. In 2017, various media outlets reported allegations of sexual harassment and assault against Weinstein by numerous women, including Judd. Consequently, the director for the Lord of the Rings films revealed in a media interview that he chose not to cast Judd because of statements Weinstein had made about her professionalism, including that he had a "bad experience" with the actress and that she was "a nightmare to work with."
After this revelation, Judd filed this lawsuit asserting a myriad of claims. At issue was the district court’s dismissal of her claim for sexual harassment in professional relationships under Section 51.9 of the California Civil Code.
Enumerated examples. Section 51.9 imposes liability for sexual harassment in any "business, service, or professional relationship" outside the workplace that is "substantially similar" to the statute’s enumerated examples. In the applicable 1996 version of the law, those examples included physician, psychotherapist, dentist, attorney, real estate agent, loan officer, collection service, building contractor, executor, trustee, landlord, and teacher. Though the list was later amended to add "director or producer" effective January 1, 2019, Judd’s claim fell solely within the scope of the 1996 version of the statute.
The statute also required allegations that the defendant "made sexual advances, solicitations, sexual requests, or demands for sexual compliance by the plaintiff that were unwelcome and persistent or severe, continuing after a request by the plaintiff to stop," that there is "an inability by the plaintiff to easily terminate the relationship without tangible hardship," and that the plaintiff "has suffered or will suffer economic loss or disadvantage or personal injury" as a result of that conduct.
Producer’s coercive power. On appeal, the Ninth Circuit rejected Weinstein’s contention that his relationship with Judd could not be substantially similar to any of the enumerated examples because they were too "idiosyncratic." Rather, the examples clearly consisted "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 and landlords can do so over their tenants because they control access to their security deposits and to some extent the premises.
Actress’s tangible hardship. Here, Judd plausibly alleged that her relationship with Weinstein was similarly "characterized by a considerable imbalance of power." By virtue of his professional position and influence as a top Hollywood producer, he was "uniquely situated" to exercise coercive power or leverage over the young actress, who was at the beginning of her career at the time. Moreover, given his highly influential and "unavoidable" presence in the film industry, the relationship would have been difficult for the actress to terminate "without tangible hardship" since her livelihood depended on being cast for roles.
The Ninth Circuit rejected Weinstein’s contention that framing the statute’s enumerated relationships as characterized by a power imbalance was untenable because such an imbalance does not always apply in each relationship. The fact that the traditional balance of power in a relationship may be flipped in some scenarios did not negate the reality that a power imbalance nevertheless tended to exist in these relationships under normal circumstances.
Jury to decide if employment relationship. Moreover, despite Weinstein’s arguments to the contrary, Judd sufficiently alleged that the two were engaged in a "professional relationship" at the time of the alleged harassment. And while he also argued that her claim did not fall under Section 51.9 since their relationship "centered around employment or potential employment," the true nature of their relationship would be decided by the jury. Because the actress alleged that the meeting at the hotel was "not a job interview for any particular role," but rather "a form of business development" to expand her professional relationship with the movie mogul, dismissal was not warranted.
The case is No. 19-55499.
Attorneys: Lauren M. Blas (Gibson, Dunn & Crutcher) for Ashley Judd. Phyllis Kupferstein (Kupferstein Manuel) for Harvey Weinstein.
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