Written by Jeremy Mittman and Bethanie Thau

Late last week, the Ninth Circuit reversed dismissal of actress Ashley Judd’s sexual harassment claim against producer and Miramax co-founder Harvey Weinstein.  Judd’s harassment claim alleges Weinstein derailed Judd’s potential casting in The Lord of the Rings films after she rebuffed his sexual advances during a hotel room business meeting early in Judd’s career.  The revived claim alleges violation of California Civil Code Section 51.9, which imposes liability for sexual harassment in business, service, or professional relationships.

Although Section 51.9 now expressly refers to professional relationships with directors and producers, Judd’s claim fell within an earlier version of the statute, which listed relationships with physicians, attorneys, loan officers, executors, landlords, teachers, and “substantially similar” relationships.  The district court dismissed Judd’s claim because the alleged facts did not demonstrate that Judd’s relationship with Weinstein was “substantially similar” to the listed examples.  The district court also questioned whether the relationship might instead be an employment relationship and outside the purview of Section 51.9.

On review, a three-judge panel concluded that the key similarity among the listed professional relationships was the “inherent power imbalance” that exists where one party is “uniquely situated to exercise coercion or leverage over the other.”  Citing an amicus curiae brief by the Screen Actors Guild-American Federation of Television and Radio Artists, the panel determined that the “potential for abuse” exists in the producer-actor relationship, and that Judd’s allegations describing Weinstein as a dominant industry figure and “gatekeeper to many desirable roles and film projects” who “could damage her career” sufficiently alleged the necessary imbalance of power in their relationship to fall under Section 51.9. 

The panel rejected Weinstein’s argument that no professional relationship existed at the time of the hotel meeting, stating that discussions regarding “potential roles in films to be produced or distributed by Weinstein or Miramax” was “more than enough to allege a professional relationship at the time of the alleged harassment.”  The panel noted further, that Weinstein did not dispute that he and Judd had a professional relationship at the time of the alleged subsequent retaliation.

The panel also addressed the district court’s conclusion that the relationship was too much like an employment relationship and therefore beyond the scope of Section 51.9, stating that Judd’s contention that the meeting was a general business development meeting and not a “job interview for any particular role” was sufficient to maintain her claim at this early stage. 

The Judd case is a strong reminder that allegations of sexual harassment are not just limited to employment relationships, and therefore, producers would be well advised to not only follow the law, but ensure that appropriate policies and procedures are in place to prevent unlawful activity from occurring within their organizations.