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On Friday, a California federal judge gave soap actress Victoria Rowell the green light to move to the next stage of a lawsuit that accuses Sony Pictures Television of retaliating against her.
Rowell played the popular character Drucilla Barber Winters on The Young and the Restless for 14 years, and more than a decade ago began advocacy work pushing to have African-Americans more involved in entertainment. Among other things, she campaigned to have black actors in the front row for press photos, urged that black journalists be included in the show’s press corps and lobbied for a black hair stylist.
Rowell left the series in 2007, but in response to fans who wanted her back, she pushed to return to Y&R or its sister soap The Bold and the Beautiful. In a lawsuit filed against Sony, CBS and Bell Dramatic Serial Company in February 2015, she claimed that producers were basically getting even with her by refusing to hire her.
In November, U.S. District Judge John Kronstadt threw out her claims with the conclusion that she needed to do more than assert some form of constructively open job for which she wasn’t being hire. “Indeed, such an approach has the potential to open the door to vast number and wide variety of claims in many industries in which those who did not pursue open positions claimed that employers should have created them,” wrote the judge at the time.
The judge did, though, allow Rowell to amend her complaint.
The actress did, and Kronstadt comes to the same conclusion, this time dismissing those claims without an opportunity to try again.
However, in her amended complaint, Rowell added a retaliation claim on the plead fact that she also pursued a smaller part on another Sony soap, Days of Our Lives, before being taken off an audition list. On this front, she experiences more success.
Sony argued that Rowell “express[ing] interest” for the part wasn’t the same as expressly applying for a position, but Kronstadt responds there is no meaningful difference. He writes in the opinion (read here) that her amended complaint “alleges all of the required elements of [a retaliatory failure to hire] claim: Plaintiff applied for a position for which Defendants were seeking applicants; despite Plaintiff’s qualifications, she was rejected; and thereafter, the position remained open and Defendants continued to seek applicants.”
Other arguments against the claim also fail including Sony’s contention that nothing established it played any part in the decision to allegedly remove her from the audition list nor was aware of Rowell’s advocacy against discrimination.
Perhaps most importantly for future lawsuits, the judge once again refuses to stop Rowell on First Amendment grounds. Sony turned once again to the decision in a failed lawsuit alleging racial discrimination on The Bachelor for the proposition that casting decisions are a component of any entertainment show’s creative content and are protected as free speech.
Kronstadt quotes his earlier opinion about the distinguishable factor from that case. He wrote, “In a challenge to casting decisions, there is a critical distinction between claims of alleged discrimination and those of alleged retaliation. Plaintiff does not allege that the failure to hire her was due to her race or that the casting decisions by any of the Defendants were made on that ground. … Instead, Plaintiff alleges that she was not hired in retaliation for engaging in protected speech. Thus, unlike the plaintiff in Claybrooks, Plaintiff here does not allege that the decision not to hire her was related to Defendants’ creative vision for their programs. The [amended complaint] instead alleges that the retaliation arose from disagreements with Plaintiff and her positions about hiring more African Americans, not ones about the appropriate racial diversity for characters on the programs.”
In short, her protected speech wins the day, while Sony’s doesn’t.
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