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California’s Department of Fair Employment & Housing is trying to convince an L.A. judge that its suit against Disney over alleged harassment on the set of Criminal Minds should go forward, even though the series wrapped in 2019 and the accused offender no longer works for the company or any of its affiliates.
DFEH in May 2020 sued studios and individuals connected to the show, alleging they had enabled director of photography Gregory St. Johns to create “an unchecked intimidating, hostile, and offensive work environment on the set of Criminal Minds.” It claims over a period of 14 years St. Johns engaged in “rampant” harassment, discrimination and retaliation against people who worked on the series, and it brought the suit on behalf of itself and “all persons who worked on set for the production of Criminal Minds.”
Disney in January filed a demurrer to the complaint, arguing it is “hopelessly vague” and the few instances of alleged misconduct that are specified don’t share enough commonality to warrant a group action. (St. Johns, who’s represented by a different attorney than the other defendants, filed a joining reply in support of the demurrer.)
In a joint status report submitted ahead of a hearing on the demurrer, there’s a novel question posed: Can DFEH seek an injunction against Disney when there’s no chance of St. Johns alleged actions’ recurring since he no longer works for the company or its affiliates?
DFEH argues none of that matters because Disney is still in business and its HR department still oversees such personnel issues.
“DFEH, as a public prosecutor, has the express mandate of providing remedies designed to eliminate discriminatory practices such as the unlawful harassment, discrimination and retaliation alleged in the FAC,” states the filing. “Here, FAC alleges not only that harassment, discrimination and retaliation occurred on the set of Criminal Minds but that Defendants, including Walt Disney Company through their human resource personnel, failed to prevent such unlawful conduct. To date there is no allegation that Walt Disney Company or any of the remaining corporate defendants have ceased operations as to render injunctive relief in this matter moot.”
Litigator Sean Andrade isn’t convinced and says it certainly does seem moot. “Here the DFEH is really trying to make out a case of pattern and practice and bigger policy issues that went into play,” he says. “DFEH would probably argue production may have ended, and that one person may be gone, but this is still going to continue happening.”
Disney argues DFEH’s requested relief would amount to “an improper ‘obey the law’ injunction.”
Employment attorney Ann Fromholz, who specializes in workplace investigations, agrees. “If the show doesn’t exist and Mr. St Johns isn’t working there anymore, what exactly is the DFEH seeking to enjoin? Are they seeking to enjoin Disney, generally, from allowing harassment?” she posits. “The court will say ‘there’s a law that prevents harassment.'”
She anticipates that Buckley will side with Disney on this issue, too.
“In my opinion, and keeping in mind that I was a defense lawyer for 20 years, I think Disney’s argument is a winning one,” says Fromholz. “Courts tend to be hesitant to grant injunctive relief and I expect the court won’t here because it’s not clear at all that the DFEH has identified any unlawful conduct that allegedly occurred outside of the Criminal Minds production. Their main argument is ‘well, Disney still exists.'”
There’s a chance Buckley won’t reach these arguments, as they’re not included in Disney’s current demurrer. Attorneys are dubious that injunctive relief would be appropriate, even if the request survives this stage.
“It seemed to me that the state is saying this may have happened on Criminal Minds but your response to these kinds of complaints is a systemic problem that requires more oversight than what you’re doing,” says litigator Bryan Sullivan, who’s represented individuals and companies involved in sexual misconduct matters. He notes these kinds of claims are very fact specific, and it’s not easy to establish a pattern when allegations can range from obnoxious, offensive remarks to outright sexual assault. “I would think it’s going to be tough to argue ‘you have a systemic issue in how you respond to these complaints.'”
Whether DFEH must meet the same standards required for commonality in a class action filed by civil litigants is one of the key issues in the demurrer. The agency argues it’s acting “as a public prosecutor pursuant to the state’s police powers, not a private party subject to class certification.” Meanwhile, defendants argue the statute that empowers DFEH to take action still requires that “an unlawful practice raises questions of law or fact which are common to such a group or class.” A hearing is currently set for Wednesday.
“I find it interesting that the state is pursuing it so aggressively over a show that is canceled,” says Sullivan. “They must feel that there’s something more there to put this amount of effort into the case. Maybe they’re trying to send a message because Disney is a big company. ‘If we’ll go after Disney, we’ll go after you too.'”
The attorneys agree a success here for DFEH, however unlikely, would open the door for the agency to take action against other companies on similar grounds.
“It does become a slippery slope if you’re able to essentially obtain an injunction when the conduct being complained about has already ceased,” says Andrade. “DFEH is trying to make it broader about their policies and how they handle instances of retaliation and harassment. It is an interesting question: How strong and broad can the power of the government be?”
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