8:54am PT by Eriq Gardner
Sony, CBS: Actress Can't Sue for Retaliation Because She Never Applied for Job
On Wednesday, CBS Corp. and Sony Pictures filed a pair of motions in a California courtroom that aims for the soap opera equivalent of throwing Victoria Rowell's lawsuit off of a cliff.
The former Young and the Restless star filed her lawsuit in February with allegations that despite widespread public interest that she revive her role as Drucilla Barber Winters, the defendants wouldn't re-hire her because of her outspokenness about increasing the presence of African-Americans both in front of and behind the camera in soap operas. The broadcaster and producers have not only thrown up an anticipated First Amendment challenge to such a claim, but have also cast doubt on the idea of an actress who is so popular, she doesn't need to go through the formality of applying to support a legal claim of retaliation under the Fair Employment and Housing Act.
Rowell's lawsuit "describes the numerous attempts of Plaintiff and those acting on her behalf to ask Defendants if she could 'return to Y&R,' but she never alleges she actually applied for any position," states a motion to dismiss (read here).
CBS and Sony tell the judge there's no requirement under FEHA that employers create new positions when asked. They say it would "open the floodgates" to lawsuits against employers.
Then, in a noteworthy footnote, they address the "anticipated argument" from Rowell that she should be excused from actually applying or auditioning "because she is a 'star' or because 'sometimes' actors with 'known characters' get jobs without actually applying for them."
A star in Hollywood might not equate to a star in the eyes of labor law. CBS and Sony say that the requirement of a job application is important lest courts be forced to measure the "stature or popularity" of particular plaintiffs to determine if they have been retaliated against for an "open position."
Besides a motion to dismiss, CBS and Sony have also filed an anti-SLAPP motion that aims to defeat the lawsuit — and potentially make Rowell pay their legal costs — on free speech grounds. The motion (read here) repeats the same argument above as well as the one that casting decisions are creative expression protected by the First Amendment. The defendants put special emphasis on a 2012 decision that rejected a discrimination lawsuit against ABC for failing to feature non-white cast members on The Bachelor.
What makes that decision according to the defendants the "most on-point federal court decision on this topic" — besides featuring some of the same attorneys on the plaintiffs' side —is that a federal court ruled that to inject itself in casting decisions "would actually affect the particular show's message" and "embroil courts in questioning the creative process behind any television program."
"This lawsuit seeks to wrest control of that decision from Defendants, and to invoke California’s anti-discrimination law in an attempt to force two television soap operas to alter their story lines to accommodate the wishes of one actress," states the anti-SLAPP motion from attorneys at Davis Wright Tremaine. "There can be little doubt that such governmental interference invites First Amendment scrutiny."
One quick and timely note on procedure: The lawsuit was originally brought in New York. CBS and Sony raised a jurisdictional challenge before Rowell agreed to bring the lawsuit over to California. One of the big differences between the two states is that California has a much more expansive anti-SLAPP statute as it covers free speech whereas New York doesn't. The California law is aimed at deterring frivolous lawsuits at very early stages by examining whether they address First Amendment activity and whether the plaintiff has a likelihood of prevailing. This isn't to say that Rowell will necessarily lose and be forced to pay CBS/Sony's legal bill. We merely mention this because on Wednesday, several lawmakers introduced a bill that would establish a federal anti-SLAPP law with potentially big ramifications if passed. The bill would impact where lawsuits are adjudicated and influence the course of lawsuits touching free speech activities, which would mean a great deal for media and entertainment companies, and as seen here, might even make labor claims tougher for certain plaintiffs.
Rowell's lawyer Dan Stormer isn't impressed by the motions from CBS and Sony.
"This is a standard practice that defendants use to try and escape from their responsibilities," he says. "CBS/Sony is afraid to address the important underlying issues of their racial discrimination and retaliation. They are hoping to find some obscure technicality that might allow them to escape the justice that Victoria Rowell so richly deserves”