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Let’s be honest: Lawmakers are not always great at making laws. And so on Friday, the 9th U.S. Circuit Court of Appeals took a hard look at California Civil Code 51.9, one of the many statutes enacted throughout the nation in the 1970s and 1980s when women mounted a concerted effort to speak out about their experiences in the workplace, and activists aimed to codify a women’s right to work free of unwanted sexual advances. Those efforts by brave women resulted in attempted regulation of sexual harassment, but it was not until the #MeToo movement came along several decades later did California lawmakers add three words to Civil Code 51.9 — “Director or producer.”
Now, the question being put to the Ninth Circuit: Before Jan. 1, 2019, when California’s amended law went into effect, did punishable forms of sexual harassment not include Hollywood’s “casting couch,” meaning the solicitation of sexual favors for roles in movies and TV shows?
Nearly two years ago, a federal judge decided that § 51.9 didn’t apply to any relationship centered around prospective employment. The ruling was a setback for actress Ashley Judd in her lawsuit against Harvey Weinstein. Today, both sides presented their arguments to an appeals court. The court has also heard from SAG-AFTRA, which in an amicus brief spoke to how in the entertainment industry, “relationships with one or more of its gatekeepers often is critical for an actor to access the opportunities to compete for the most coveted roles.”
In her suit, Judd alleges that when she was a newcomer to Hollywood back in 1996, she was summoned by Weinstein to discuss film work. At a Beverly Hills hotel, Judd arrived to find Weinstein in a bathrobe. He allegedly made sexual propositions. Judd says she refused, and afterwards, Weinstein retaliated by telling Lord of the Rings director Peter Jackson that she was “a nightmare to work with” and that she should be “avoided at all costs.” Judd didn’t get cast. Judd said that she only recently found out about Weinstein’s conversation with Jackson.
What makes this case tricky is that Judd was not Weinstein’s employee. One might characterize Judd as a job applicant, but even that descriptor might not fit exactly. And here’s the rub: Civil Code 51.9 only applies to harassment where there is a “business, service, or professional relationship” and provides a list of occupations that fit. These examples include landlord, teacher, and lobbyist. Until last year, the list didn’t include producer. At least not explicitly. Whether or not California lawmakers were merely “clarifying” the scope of the law with its #MeToo amendment for “director or producer” is a consideration for the appeals court.
Most importantly, putting aside the amendment, there’s the issue of interpreting the law as constructed. While Judd’s lawyer Ted Boutrous contends that the relationship between Judd and Weinstein indicates the very same kind of power imbalance characterizing the other statutory examples, such as a relationship between teacher and student, Weinstein’s attorney Phyllis Kupferstein argues that interpreting the law without limit leads to absurd results. At today’s hearing, she tried the example of parents doing car pooling for each other. That would be covered under Judd’s interpretation, said Weinstein’s attorney, adding, “Our best argument is that the statute has to put you on notice whether you are in a covered relationship.”
The Ninth Circuit judges seemed a bit skeptical, or at least inclined to figure out a way to revive Judd’s sexual harassment claim.
Judge Morgan Christen, for example, stated that her reading of § 51.9 was that that the statute went beyond co-workers and that the “common characteristic” in the enumerated examples was not quite a power differential as Boutrous has posited but rather the “ability to coerce” in the professional context.
Boutrous responded that he thought that assessment was correct, although he did assert that power was a component of coercion.
He was also prodded to address the importance of this case.
Boutrous, who called this a case of first impression, had to reconcile the fact that California lawmakers through the amendment last year took care of “casting couch” situations on a going-forward basis. Pointing to recent discoveries, he said, “We believe there are other women who find themselves in a similar position [as Judd] as they now realize that their careers were being short circuited because they spurned sexual advances.”
Kupferstein expressed doubts here.
“This isn’t a case that’s important beyond Ms. Judd because we have the amendment,” she said. “You’re talking about whether or not there are cases of conduct prior to 2018. You’d expect that given allegations came out in 2017, the claims would be time-barred. This doesn’t seem like a decision that will have impact beyond Judd.”
The appellate judges on today’s panel expressly disclaimed knowledge of Hollywood, yet they seemed pretty familiar with Weinstein.
“I don’t really know this industry, but according to the papers, personal relationships are extremely important,” said Judge Sidney Stein (a New York federal judge sitting by designation). “I don’t think there’s any question that he was a major player in the industry at the time. And I think it would be reasonable for her to think and therefore be on notice that this man held substantial sway over her career. Am I wrong?”
“That would be true then about any director, producer, other influential actor, investor,” responded Kupferstein. “Any one of those persons could have some sway. Or maybe even a lot of sway over her career —”
Stein interjected, “It’s not even potential. He had sway.”
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