2.5.18

Ashley Judd’s lawsuit against Harvey Weinstein could transform sexual harassment law

Ashley Judd, who is suing producer Harvey Weinstein for defamation and sexual harassment, pictured in April 2018.

“I lost career opportunity, I lost money, I lost status,” the actress says. Now she’s suing, in a case that could have nationwide implications.

“I lost career opportunity, I lost money, I lost status and prestige and power in my career as a direct result of having been sexually harassed,” Ashley Judd said on Good Morning America on Tuesday.

The actress is suing producer Harvey Weinstein for defamation, sexual harassment, and violation of California’s unfair competition law, which prohibits unfair business practices, according to the New York Times. She says that after she rejected Weinstein’s advances, he told lies about her to director Peter Jackson, costing her a role in the Lord of the Rings franchise.

Judd didn’t work directly for Weinstein when she says he harassed her, but he still had influence over her career. (A spokesperson for Weinstein said that the producer never harassed Judd or interfered with her career.)

It’s hard enough for workers to fight back against harassment in conventional workplace settings. But for independent contractors harassed by people who don’t have an official working relationship with them, the process is even more difficult. If Judd wins, her case could have larger implications for people who face harassment in nontraditional working relationships.

“There’s a whole group of women who are unprotected” by federal and state sexual harassment laws, said Merrick Rossein, a law professor at the City University of New York who works on sexual harassment law. A win for Judd could help those workers one day get the protections they need.

Judd was one of Weinstein’s first public accusers

Ashley Judd was one of the first women to publicly report harassment by Weinstein, coming forward in the October 2017 New York Times exposé that helped launch the recent reckoning around sexual misconduct. Twenty years ago, Judd told the Times, Weinstein invited her to a breakfast meeting at the Peninsula Beverly Hills hotel. He had her sent up to his room, she said, where he wore a bathrobe and asked if he could give her a massage or if she would watch him shower.

“I said no, a lot of ways, a lot of times, and he always came back at me with some new ask,” Judd told the Times. “It was all this bargaining, this coercive bargaining.”

“He kept coming back at me with all this other stuff,” Judd said in an October interview with Diane Sawyer of ABC News. “And finally I just said, ‘When I win an Oscar in one of your movies, OK?’ And he was like, ‘Yeah, when you get nominated.’ I said, ‘No, when I win an Oscar.’ And then I just fled.’”

Her suit hinges on comments Peter Jackson made in December

In December 2017, Peter Jackson added some new information to Judd’s story. He said in an interview with New Zealand-based website Stuff that he had been interested in casting both Judd and actress Mira Sorvino, who has also reported harassment by Weinstein, in the Lord of the Rings movies. Weinstein’s studio, Miramax, was initially slated to produce the films. When Jackson brought up Sorvino and Judd with Miramax around the year 1998, he told Stuff, “I recall Miramax telling us they were a nightmare to work with and we should avoid them at all costs.”

“At the time, we had no reason to question what these guys were telling us — but in hindsight, I realize that this was very likely the Miramax smear campaign in full swing,” he said. “I now suspect we were fed false information about both of these talented women — and as a direct result their names were removed from our casting list.”

These public statements helped Judd build a case against Weinstein. As Brooks Barnes notes at the Times, “it is rare for people to recover damages for smear campaigns,” because it’s hard to prove the smear took place, let alone directly affected someone’s career. But Jackson’s comments provide clear evidence, according to Judd’s suit, that Weinstein tried to blacklist the actress and that his actions had a direct effect on her.

The suit alleges that any claim that Judd was difficult to work with was false — she had only worked on one Miramax movie before 1998, during which she remembered no professional contact with Weinstein, and the experience had been a positive one. But according to the suit, that didn’t matter, and Weinstein’s comments ended up ruining Judd’s chance to work on a wildly successful franchise.

Before Jackson’s meeting with Miramax, the suit alleges, Jackson and his producing partner Fran Walsh had asked Judd which of two roles in the Rings movies she preferred and which she most identified with. After the meeting, the movies went on without her, earning more than $2.5 billion worldwide and winning 17 Oscars.

A spokesperson for Weinstein disputed Judd’s account. “The most basic investigation of the facts will reveal that Mr. Weinstein neither defamed Ms. Judd nor ever interfered with Ms. Judd’s career, and instead not only championed her work but also repeatedly approved her casting for two of his movies over the next decade,” the spokesperson said in a statement emailed to Vox. “We look forward to a vigorous defense of these claims.”

But according to her suit, Weinstein and Miramax “denied Ms. Judd the significant opportunity to work with Mr. Jackson on one of his films. They also denied her all the opportunities she would have had with other filmmakers going forward if she had worked on one of Mr. Jackson’s successful and critically acclaimed projects.”

The case could have bigger implications for harassment law

Judd didn’t officially work for Weinstein when he allegedly harassed her at the Peninsula Beverly Hills, or when Miramax allegedly told Peter Jackson not to cast her. That puts her in a difficult position with respect to sexual harassment law. Federal and most state sexual harassment laws apply to employers and their employees, Rossein, the law professor, explained. That means they don’t cover independent contractors, or people in professional relationships like the one Judd says she had with Weinstein, in which he didn’t employ her but still had influence over her career.

That’s where California’s unfair competition law comes in. The law bans “unlawful, unfair and fraudulent business acts and practices,” according to the Times. Judd’s suit claims that Weinstein violated the law by “maliciously defaming” Judd and by “intentionally interfering with Ms. Judd’s prospective economic relationship” with Jackson.

If Judd wins her suit, it would open the door for other independent contractors in California who have faced harassment to sue under the unfair competition law, Rossein said. It could also motivate legislators in other states to introduce similar laws to protect independent contractors from harassment.

As part of the recent #MeToo movement, many people have spoken out about sexual misconduct by people who, while not their direct supervisors, had influence over their careers in some way. Several women who have spoken out against former NPR editorial director Michael Oreskes, for instance, have said he made unwanted advances or otherwise made them uncomfortable during what they thought were supposed to be networking meetings — they didn’t work for him yet, but hoped a meeting might lead to a job down the line. Instead, one woman said Oreskes’s conduct at their meeting “utterly destroyed my ambition.”

As the gig economy expands and more and more people become independent contractors, there’s a greater and greater need for laws to protect them from harassment, Rossein said. “The American workplace has changed radically,” he explained, “and it’s leaving many employees without any real protection.”

Judd’s claim isn’t just about inappropriate advances — it’s about work

“Acting is a unique job that offers incredible opportunities for creative and personal fulfillment,” Judd’s suit states. “But it is still a job. And like any professional, an actor like Ms. Judd must rely on her reputation to find work in the face of fierce competition.”

Because of Weinstein’s comments, the suit says, her reputation suffered, and so did her career. The suit notes that many women have come forward to report experiences with Weinstein that caused them physical and emotional harm. But ultimately, Judd’s case “is about business, and the central harm is economic.”

“Weinstein’s wrongful and outrageous conduct has not just deprived Ms. Judd of the specific opportunity to play a prominent role in a blockbuster film trilogy,” the suit continues; “it has had a long-lasting ripple effect on the trajectory of her whole career. No person — in whatever job, in whatever industry — should have to forfeit professional aspirations and the right to earn a living to the abusive whims of the powerful.”

Judd’s suit is a reminder that sexual harassment is, among other things, a labor issue — being harassed or retaliated against can deprive survivors of work opportunities, forcing them out of their jobs and even their fields. As a Hollywood actress, Judd may have been in a relatively privileged position when she rejected Weinstein’s alleged advances. But, she says, her work still suffered when Weinstein retaliated against her.

Now, she says part of her goal with her lawsuit is to help other survivors who have fewer advantages. She has pledged to donate any damages she receives to the Time’s Up Legal Defense Fund.

“Our aim in bringing this suit is to hold Mr. Weinstein accountable for his retaliation against Ms. Judd, defamation of her business reputation, and interference with her career,” said her lawyer, Theodore J. Boutrous, Jr., in a statement to Vox. “We are also seeking to deter this sort of highly reprehensible misconduct in the future by shining a light on the broader economic damages caused when individuals in positions of authority attempt to punish those who have resisted their improper advances.”

Judd’s suit alleges not just inappropriate sexual behavior, but abuse of power — an abuse that Judd says affected her for years before she even realized it.

“What Ms. Judd did not know until December 2017 was that something unseen was holding her back from obtaining the work she wanted,” the suit says. “The headwind limiting her career was Harvey Weinstein.”

source: vox

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