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Harvey Weinstein will have to face a sexual harassment claim from Ashley Judd even though the actress was never actually employed by the disgraced movie mogul. On Wednesday, the Ninth Circuit Court of Appeals decided that California Civil Code § 51.9 encompassed their relationship sufficiently to provide Judd with the ability to sue him for sexual harassment.
Judd alleges in her complaint that she became Weinstein’s victim when the movie mogul made demands on her in a hotel room about 20 years ago. Judd says that she only escaped after relenting to a deal where she would let him touch her if she won an Academy Award. Later, Judd says she was in serious discussions for a big role in Peter Jackson’s Lord of the Rings, but that opportunity was torpedoed after Weinstein or someone at Miramax told the director that she was a “nightmare” to work with.
In Sept. 2018, a federal judge allowed Judd to pursue a defamation claim, but not a sexual harassment claim because according to the judge’s interpretation of §51.9, the statute didn’t apply to relationships centered around prospective employment.
The case then went to the Ninth Circuit, which took a hard look at California’s attempt codify a women’s right to work free of unwanted sexual advances. Did that law encompass Hollywood’s so-called “casting couch,” meaning the solicitation of sexual favors for roles in movies and TV shows? And how to make sense of California’s recent #MeToo amendment, which added “director or producer” to the types of occupations explicitly mentioned in the statute as being covered? Was the addition addressing a deficiency in the law, as Weinstein’s attorneys argued, or did it merely clarify the scope of the law, as Judd’s submitted?
“In sum, we conclude that, as alleged, section 51.9 plainly encompasses Judd and Weinstein’s relationship, which was ‘substantially similar’ to the ‘business, service, or professional relationship[s]’ enumerated in the statute,” writes Ninth Circuit Judge Mary Murguia. “As in the enumerated relationships, 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. We have no difficulty concluding that the California Supreme Court would reach the same conclusion, obviating the need to certify the question. Therefore, the district court erred when it dismissed Judd’s sexual harassment claim under section 51.9.”
“This is an important victory not only for Ms. Judd but for all victims of sexual harassment in professional relationships,” said Ted Boutrous, the Gibson Dunn partner who represents Judd. “The court correctly holds that California law forbids sexual harassment and retaliation by film producers and others in powerful positions, even outside the employment context, and we look forward to pursuing this claim against Mr Weinstein at trial.”
Responded Weinstein attorney Phyllis Kupferstein, “We are glad that both Ms. Judd and Mr. Weinstein will have their day in court, where we expect the truth will come to light. The most minimal investigation of the events will show that Mr. Weinstein neither defamed Ms. Judd, nor hindered or interfered with her career, and certainly never retaliated against her and indeed, had nothing to retaliate for. Instead, Mr. Weinstein championed her work and approved her casting for two of his movies.”
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