Ashley Judd’s Sexual Harassment Case Against Harvey Weinstein Can Go Forward

Earlier this week, the Ninth Circuit Court of Appeals reversed the district court dismissal of actor Ashley Judd’s sexual harassment claim against former Hollywood producer Harvey Weinstein. The Ninth Circuit opinion allows Judd’s sexual harassment claim to go forward. This decision illustrates how sexual harassment claims are not limited to standard employer/employee or service provider/client relationships.

Judd alleges that she was sexually harassed by Weinstein in 1996 or 1997, when she was starting her acting career and Weinstein was a powerful producer. Judd says Weinstein harassed her during a meeting intended to discuss potential acting opportunities. After she rejected his advances, Judd claims Weinstein prevented her from being cast in movies he produced. Notably, Judd alleges that Weinstein blocked her casting in The Lord of the Rings adaptations in retaliation. In fact, the reason Judd can bring her suit so many years after the usual statute of limitations has passed is because she says did not discover that Weinstein had been retaliating against her until Peter Jackson, who directed, produced, and wrote The Lord of the Rings films, gave an interview in 2017 about Weinstein’s actions against Judd. See Judd v. Weinstein, No. CV 18-5724 PSG (FFMx), 2018 WL 7448914, at *3-5 (C.D. Cal. Sept. 19, 2018). Judd was able to use California’s “discovery rule,” which is an exception to the general rules regarding statutes of limitation. Under the discovery rule, the statute of limitation begins to run not when the injury occurs, but instead when the plaintiff discovers or has reason to discover the cause of action. See No. CV 18-5724 PSG (FFMx), 2018 WL 7448914, at *4.

 

Among other claims, Judd sued Weinstein in April 2018 for sexual harassment in a professional relationship under California Civil Code Section 51.9. While allowing her other claims to go forward, the United States District Court of the Central District of California dismissed Judd’s sexual harassment claim because it believed Judd and Weinstein did not have the requisite type of professional relationship described in section 51.9.

 

Section 51.9 is part of California’s Unruh Civil Rights Act, which prohibits business discrimination on the basis of sex, race, religion, disability, sexual orientation, and other characteristics. Section 51.9 specifically prohibits sexual harassment in a variety of business relationships outside the workplace. Over the years, section 51.9 has been amended to specifically cover producer/actor relationships. However, because the alleged harassment occurred in 1996 or 1997, the court clarifies that it must use the 1996 version of section 51.9.

 

In 1996, as the Ninth Circuit explains, the law required the plaintiff to have a certain type of business, service, or professional relationship with the defendant. The 1996 statute listed examples of the types of professional relationships covered by the law, including those between plaintiffs and physicians, attorneys, social workers, accountants, teachers, real estate agents, landlords, and other specific professions. The statute also covered relationships, “substantially similar to any of the above.” Because the relationship between an actor and a producer was not specifically enumerated in the statute, Judd argued that her professional relationship with Weinstein was substantially similar to those listed. The district court disagreed, holding that the defining characteristic of the enumerated relationships was that they were all between service providers and clients. See No. CV 18-5724 PSG (FFMx), 2018 WL 7448914, at *9. Because Weinstein and Judd did not have a service provider/client relationship, the district court dismissed her claim.

 

Fortunately, the Ninth Circuit agreed with Judd. The Ninth Circuit’s reversal of the district court opinion states that the key element in the enumerated relationships is that, “an inherent power imbalance exists such that, by virtue of his or her ‘business, service, or professional’ position, one party is uniquely situated to exercise coercion or leverage over the other.” Because Judd was an actor at the beginning of her career and Weinstein was an established and powerful Hollywood producer, their relationship may have been defined by an inherent power imbalance. Under the Ninth Circuit’s interpretation of section 51.9, Judd and Weinstein’s professional relationship is potentially covered by the statute and she may pursue her sexual harassment claim. The case has been remanded to the district court.

 

Section 51.9 looks different now than it did in 1996. The statute was amended in 2018 and now explicitly covers sexual harassment by directors, producers, elected officials, and lobbyists, in addition to all of the professions previously specified.

 

In this week’s decision, the Ninth Circuit recognized the importance of protecting people from sexual harassment in a wide variety of contexts. The Unruh Civil Rights Act and section 51.9 are important tools in the fight against injustice.

 

Bryan Schwartz Law has written about sexual harassment, gender discrimination, and retaliation many times before. If you believe you were sexually harassed, discriminated against, or retaliated against, please contact Bryan Schwartz Law.

Ninth Circuit Holds Catholic School Teacher fired after Cancer Diagnosis Can Sue School for Discrimination, Not Barred by First Amendment

On December 17, 2018, the Ninth Circuit reversed a decision by the United States District Court for the Central District of California in Biel v. St. James School, A Corp., et al., Case No. 17-55180.

Plaintiff Kristen Biel, a fifth-grade teacher for Defendant, filed a claim under the Americans with Disabilities Act (“ADA”) when St. James Catholic School fired her after she told the School that she had breast cancer and needed time off from work to undergo chemotherapy. The district court dismissed Biel’s claims at summary judgment—holding that her lawsuit under the ADA was barred by the First Amendment’s “ministerial exception.” After her case was dismissed, Plaintiff Biel appealed to the Ninth Circuit.

In November 2013, Plaintiff Biel received a positive teaching evaluation from the School’s principal, noting that Biel was “very good” at promoting a safe and caring learning environment for her students. Less than six months after that evaluation, Biel was diagnosed with breast cancer. When she disclosed her diagnosis to the School’s administrators, she was told her employment contract would not be renewed because “it was not fair … to have two teachers for the children during the school year.”

Biel sued St. James in the United States District Court for the Central District of California, alleging that her termination violated the ADA, which prohibits employment discrimination based on disability. St. James moved for summary judgment, arguing that the First Amendment’s ministerial exception to generally applicable employment laws barred Biel’s ADA claims. The district court agreed and granted summary judgment for St. James.

On appeal, the Ninth Circuit reversed, finding that the total circumstances of Biel’s employment did not qualify her as a minister for the purposes of the ministerial exception.

In Hosanna-Tabor, the only case where the U.S. Supreme Court has applied the ministerial exception, the Court focused on four major considerations to determine if the ministerial exception applied: (1) whether the employer held the employee out as a minister, (2) whether the employee’s title reflected ministerial substance and training, (3) whether the employee held herself out as a minister, and (4) whether the employee’s job duties included “important religious functions.” Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 192 (2012).

In Hosanna-Tabor, Cheryl Perich, a teacher for a Lutheran school, was fired after she was diagnosed with narcolepsy and brought ADA claims against the school. The Supreme Court found that the ministerial exception did apply because Perich was more than just a teacher in the Lutheran school. She had a special title of “Minister of Religion” conferred to her by the congregation and distinct from other teachers. Perich led her students in daily prayer, and she also led the school wide mass that occurred twice each school year. Perich claimed a federal tax benefit for employees earning compensation in the "exercise of the ministry" on her tax returns, and she also had to complete extensive religion training in the Lutheran doctrine that took her six years to complete in order to be a commissioned minister. In light of these circumstances, the Supreme Court held that Perish was a minister covered by the ministerial exception.

The Ninth Circuit found that Biel, by contrast, had no sort of credentials, training or titles like Perich. Biel was Catholic, but St. James Catholic School did not require its employees to be Catholic to teach. Biel did not have any extensive training in religion or the Catholic pedagogy. Biel taught all fifth-grade subjects, including a thirty-minute religion class using a workbook on the Catholic faith prescribed by the school administrators. And while Biel joined her students in prayer twice daily, Biel did not lead her students in prayer, and her only job duties at the School’s monthly mass were to keep her class orderly and quiet.

After a holistic examination of her training and duties demonstrated that Biel had a limited role in her student’s spiritual lives, the Ninth Circuit held the ministerial exception did not apply, reversing and remanding her case back to the district court. Biel’s lawyer, Andrew Pletcher, said Biel is still struggling with cancer but is delighted by the Ninth Circuit's ruling.

Sixth Circuit Extends Title VII Protection to Transgender Employees

Joining the Second and Seventh Circuits, the Sixth Circuit issued a decision last month that extended Title VII protection for individuals who are transgender or transitioning in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). 

The case involves Aimee Stephens, who had worked for nearly six years as a funeral director at R.G. and G.R. Harris Funeral Homes ("Funeral Home") when she informed the funeral home's owner that she is a transgender woman and intended to start dressing in appropriate business attire for women as part of her transition. The owner of the funeral home fired Stephens because of Aimee's transgender status, claiming that he would violate God's commands if he permitted funeral directors to deny their sex while representing the funeral home and would render him complicit "in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift."

After her termination, Stephens filed a charge of discrimination with the EEOC. The EEOC determined that there was reasonable cause to believe that the Funeral Home fired Stephens due to her sex and gender identity. The EEOC also found the Funeral Home to be in violation of Title VII because it provided male employees with a clothing benefit which was denied to females. After the EEOC's informal conciliation process failed, the EEOC filed a complaint in federal court against the Funeral Home on September 25, 2014.

After the parties cross-moved for summary judgment, the District Court determined that there was direct evidence to support Stephen's claim of employment discrimination on the basis of her sex. However, the Court nevertheless found in the Funeral Home's favor, concluding that the Religious Freedom Restoration Act (“RFRA”) precludes the EEOC from enforcing Title VII against the Funeral Home, as doing so would substantially burden the Funeral Home's religious exercise, and the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive way to achieve its presumably compelling interest “in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral home.”

The EEOC timely appealed, and Stephens moved to intervene in this appeal on January 26, 2017, after expressing concern that changes in policy priorities within the U.S. government might prevent the EEOC from fully representing Stephen's interests in the case. Stephen's request was granted by the Sixth Circuit on March 27, 2017. 

On appeal, the Sixth Circuit overturned the district court, finding that Stephens was protected by Title VII because the Funeral Home's decision to fire Stephens necessarily implicated Title VII's proscriptions against sex stereotyping, which is already protected under the court’s precedent in Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004) and Supreme Court precedent from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). As to the employer’s free exercise of religion defense, the Sixth Circuit reversed the district court’s decision, holding that forcing the funeral home to comply with Title VII did not meet the RFRA’s substantial burden requirement, in part because the funeral home could not rely on the presumed gender biases of its customers to establish a substantial burden on its free exercise of religion. The ruling affirms that transgender individuals are protected by federal sex discrimination laws, and that religious belief does not give employers the right to discriminate against them.

California Mandates Employers Display Transgender Rights Poster in Workplace

On October 15, 2017, Governor Brown approved SB 396, a law that requires California employers with 5 employees or more to display a poster about transgender employment rights in a prominent and accessible location in the workplace with other mandatory workplace notices.

California's Department of Fair Employment and Housing recently issued the new mandatory poster, which addresses key topics such as the right of employees to use restrooms, locker rooms, and other similar facilities corresponding to their gender identity and to dress in accord with their gender identity and expression.

California's Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against any employee on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

The poster follows regulations developed by the Fair Employment and Housing Council that went into effect in July 2017. SB 396 also requires mandatory sexual harassment prevention to include a component regarding gender identity, gender expression, and sexual orientation for California employers with at least 50 employees.

If you feel you have been subjected to unlawful discrimination or sexual harassment in the workplace, please contact Bryan Schwartz Law today.

California's Public Civil Rights Agency Reaches Agreement with Airbnb to Combat Discrimination

California's Department of Fair Employment and Housing (DFEH) has reached an agreement with Airbnb, the online "sharing economy" platform that allows individuals to rent their homes to guests, that will support ongoing efforts to reduce bias and combat discrimination on Airbnb's platform.

Criticism of Airbnb began with a 2015 Harvard School of Business study that found guests with African-American sounding names had a tougher time renting rooms on Airbnb's platform than guests with white sounding names. In early 2016, DFEH began investigating taking action against Airbnb after reports of discrimination on Airbnb's platform became widespread on social media. 

At the time, Bryan Schwartz Law Associate Logan Talbot was working at the DFEH as a Civil Rights Fellow. Talbot was asked by the agency to research the issue and explore the agency's options for action. Talbot drafted a memorandum for DFEH Director Kevin Kish that recommended pursuing a Director's Complaint against Airbnb, alleging that Airbnb may have engaged in acts of discrimination and failed to prevent discrimination in violation of California's Fair Employment and Housing Act and Unruh Civil Rights Act.

DFEH thereafter filed the Director's Complaint. On April 27, 2017, the DFEH issued a press release stating that the agency had reached a voluntary agreement with Airbnb to combat housing discrimination on Airbnb's platform. Under the Agreement, Airbnb will advise all renters in California who complain of discrimination of their right to file a complaint with DFEH. Additionally, Airbnb will regularly provide reports to DFEH on complaints of discrimination by Airbnb users in California and guest acceptance rates by race and national origin in California. The Agreement also provides that Airbnb employees who review Airbnb Host and Guest complaints will receive training on how to recognize complaints of discrimination and the proper methods for referring discrimination complaints to Airbnb's anti-discrimination team. As part of the agreement with DFEH, Airbnb will also post on its website and email to all California Hosts a notice of the opportunity to obtain free online unconscious bias training. 

The agreement also allows for DFEH to conduct fair housing testing on California hosts who have been the subject or one or more discrimination complaints and have three or more listings on Airbnb's platform. Airbnb has agreed to not interfere with DFEH's fair housing testing and will allow them to create accounts and profiles for such testing.

“We will continue to work collaboratively with Airbnb to prevent racial discrimination by its hosts,” said DFEH Director Kevin Kish. “California is committed to removing all discriminatory barriers in housing, including in new platforms and marketplaces. Fair housing testing is an important and powerful tool in enforcing fair housing laws.”