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Disney can’t bring an early end to a suit over alleged harassment during the production of Criminal Minds brought by California’s Department of Fair Employment & Housing on behalf of everyone who worked on set during the show’s 14-year run.
In May 2020, DFEH sued studios and individuals connected to the show, alleging director of photography Gregory St. Johns engaged in “rampant” harassment, discrimination and retaliation against people who worked on the series. The agency alleges that a worker was retaliated against after resisting a butt slap, another crewmember was pantsed, and other unidentified men were subject to unwanted touching and kissing.
L.A. County Superior Court Judge Daniel J. Buckley on Wednesday overruled Disney’s demurrer to the complaint, which argued the claims were “hopelessly vague” and DFEH couldn’t show enough commonality among the instances of alleged harassment to warrant a group action.
The central issue there is whether DFEH has to meet the criteria used for certifying a class in a civil complaint brought by a nongovernment plaintiff. DFEH said no, and Buckley agreed.
“This Court is mandated to respect the DFEH director’s judgment and treat this action as a group civil law enforcement action,” wrote Buckley in a tentative ruling, which he adopted during the hearing. “The only limitation the Court sees that may be fairly imposed on the director’s sole discretion is the requirement that the action must center around ‘an unlawful practice [that] raises questions of law or fact which are common to such a group or class.'”
Buckley suggests that after “ample” discovery Disney could bring a motion to decertify the class.
During the hearing, Jennifer Baldocchi of Paul Hastings argued that the class definition is too broad and not everyone who is included in the group should be — because some of them are “people who were willingly participating in locker room behavior” and others “weren’t offended by a butt slap,” which she compared to the kind a football coach might give a player. She argued the conduct has to be unwelcome, as well as subjectively and objectively harassing, and she asked that at the very least DFEH narrow the group to those who reported to St. Johns.
DFEH pushed back, arguing that it won’t restrict its case to people whose claims the defendants chose to investigate in “their faulty investigation.” Attorney Sue Noh argued the common question underlying all of the claims is what was done by the company in response to complaints crewmembers made about St. Johns. The agency alleges there was a “uniform failure to take harassment seriously” for more than a decade.
Ultimately, Buckley wasn’t swayed from his tentative.
“While broad, the sheer breadth of this action alone cannot defeat it,” he wrote in the decision, which is embedded below. “If that were so, then it would create the absurd loophole that St. Johns and other Defendants could escape accountability to the DFEH simply because St. Johns violated so pervasively by potentially victimizing thousands of individuals over the course of a decade.”
During the hearing, he reinforced the idea that Disney can’t dodge the suit just because “it will require them to defend a lot.”
“They’re entitled to do the broadest possible grouping that they want,” Buckley said of DFEH. “An individual in a position of power and in contact with lots and lots of people over 14 years leads to a case that’s going to require a lot of discovery.”
Baldocchi then raised Disney’s concern that the injunctive relief sought by DFEH is improper because the show is over. Since there’s no threat of a recurrence, Disney argues that request is moot and any injunction would just order the company to obey laws that already exist.
Buckley advised against another demurrer on that topic and asked DFEH if it would consider striking that requested relief without prejudice. Unsurprisingly, the answer was a hard no.
DFEH argued that Criminal Minds didn’t have a stand-alone human resources or legal department, and to say the injunctive relief is moot is “a complete misframing of the issue.” The agency wants to know if “this type of inadequate investigation” was the norm, and Noh argued the recently announced Paramount+ revival makes the request “even less moot.”
Disney was directed to file its answer to the complaint within 30 days, and Buckley left open the issue of injunctive relief for a motion for judgment on the pleadings. A status conference is currently set for April 7.
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