The casting couch in Hollywood falls within the purview of sexual harassment laws in California. That was the big deal ruling coming out of the Ninth Circuit Court of Appeals on Wednesday in actor Ashley Judd’s case against convicted rapist and former BFD producer Harvey Weinstein.
Don’t sleep on this ruling, however, as it reaches much farther than just Hollywood.
In fact, this ruling has big implications for freelancers, entrepreneurs and all others who face sexual harassment while seeking to advance professionally outside of the traditional employee-employer arena, at least in the Golden State.
Traditionally, you could sue for workplace sexual harassment only if you were in an employee-employer relationship or seeking to get into one. That meant freelancers and other professionals had little recourse at law if they faced sexual harassment while pursuing their jobs. That’s bullsh*t. Many Emmy-nominated actors, including Judd, know it.
If you recall, when the #MeToo movement popped off in 2017, Judd was one of the first women to speak out against Weinstein, revealing how the producer invited her to his Beverly Hills hotel room for a “meeting” some 20 years ago, only to insist upon sex and, upon rejection, to negotiate some quid pro quo nonsense for a role in one of his movies. Once Judd made her hard pass known, Weinstein ruined her good name and her career by blacklisting her in Hollywood.
In 2018, emboldened and badass as ever, Judd sued Weinstein for defamation and sexual harassment under California Civil Code § 51.9. This state law allowed for people to sue for sexual harassment if they had a certain type of relationship with the harasshole. Because the actor-producer relationship wasn’t on that list back in 2018 (although it is now), the trial court threw out Judd’s sexual harassment claim.
Fortunately, the Court of Appeals flexed. Basically, it ruled that Judd’s professional relationship with Weinstein was good enough to meet the spirit of § 51.9. Writing the opinion on behalf of a three-judge panel, Judge Mary H. Murguia said:
“[T]heir 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.”
BOOM! Judd now has the right to sue Weinstein under California state sexual harassment laws.
Love to see it.
Like many entrepreneurial baddies, Judd wasn’t an employee of her harasshole. Rather, she was a freelancer, navigating the professional game on screen. That doesn’t mean she shouldn’t be protected by the same laws that extend to those who are employees of companies. Without such protections, freelancers would be left vulnerable to this type of tit-for-tat “casting couch” harassment without recourse, even though we all agree that behavior has been unlawful since at least 1986, when the U.S. Supreme Court ruled that workplace sexual harassment violates the law.
Why did it take 34 years for courts to finally get on board by extending the law to freelancers like Judd? Because the law always shadows the science.
Sociologists and researchers have known for decades that workplace sexual harassment isn’t about what goes on within the four walls of one’s office. It’s about the nature of the relationship between the parties, and the power plays made against those who are vulnerable—often women, BIPOC, and LGBTQ people. It may have taken the law three decades to get it right, but we’re glad it finally did.
Of course, Weinstein isn’t. He already took a much-deserved L in court this year and won’t like taking another by losing this ruling.
We can expect the convicted rapist to ask the Ninth Circuit to reconsider its ruling and/or for the entire court to review the ruling (aka “en banc”). He may even march the decision all the way to the U.S. Supreme Court, although I can’t see Weinstein walking away with a win, whether or not RBG is present.
Weinstein won’t be alone in challenging this ruling, however. Many high-profile harassholes will loathe this decision because it means they may be held accountable for preying on those over whom they exploited power.
Regardless, that’s a “them” issue. Being a strong person who refuses to tolerate sexual harassment is a “you” issue, and with the court’s ruling today in Judd’s case, you now have more firepower in your arsenal.
Cheers to that!
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