Is it unlawful for a producer to throw out an opening low-ball offer and then not budge when the talent demands more? It might be, according to a novel decision on Thursday from a California federal judge.
The case concerns Mo’Nique, who felt insulted by Netflix’s offer for a comedy special. Her reps pleaded with Netflix to reconsider a “racially and gender biased offer” and asked, “What makes Mo’Nique, who has been labeled a living legend based on her awards from around the world worth $12,500,000 less than Amy Schumer to [Netflix]?”
That didn’t persuade Netflix, which soon felt the wrath of a lawsuit.
Now, rejecting a motion to dismiss and Netflix’s arguments that retaliation could be premised on a comedy special offer that never actually went away, U.S. District Court Judge Andre Birotte Jr. rules, “Mo’Nique plausibly alleges that, after she spoke out and called her initial offer discriminatory, Netflix retaliated against her by shutting down its standard practice of negotiating in good faith that typically results in increased monetary compensation beyond the ‘opening offer’ and denying her increased compensation as a result. Accordingly, Plaintiff has sufficiently alleged that Netflix’s alleged failure to negotiate and increase her ‘opening offer’ by straying from its standard practice are employment actions that are ‘reasonably likely to adversely and materially affect an employee’s … opportunity for advancement in … her career.'”
The decision points to the allegation that Schumer, a white comedian, was able to get her own offer increased by $13 million after she pointed to significantly higher compensation being paid to Dave Chappelle and Chris Rock. No such luck for Mo’Nique.
“The Court notes that Mo’Nique raises a novel theory here, namely that an employer’s failure to negotiate an ‘opening offer’ in good faith, consistent with its alleged customary practice which typically leads to increased compensation, constitutes an ‘adverse employment action’ for purposes of a retaliation claim,” states the decision. “While Netflix argues that the novelty of Mo’Nique’s claim and the absence of on-point legal authority for it should bar her retaliation claims outright, the Court disagrees.”
Mo’Nique’s lawyer David deRubertis was pleased with the ruling. “Today’s ruling is an important victory for Hollywood talent who, just like all other workers, need protections against retaliation if they raise concerns about pay discrimination during the hiring process,” he says. “Employers in the entertainment industry need to take pay discrimination concerns seriously, fix them if the concerns have merit, and never retaliate against those who have the courage to speak up about equal pay.”