On July 29, 2020, the Ninth Circuit in Ashley Judd v. Harvey Weinstein unanimously reversed the district court’s ruling that Judd could not proceed with her sexual harassment claim against Weinstein under California Civil Code section 51.9.
Judd alleged that in late 1996 or early 1997, Weinstein invited Judd to have a breakfast meeting at the Peninsula Hotel to discuss future work opportunities. At the time, Judd was a young actor and Weinstein was a well-connected Hollywood producer. When she arrived to the hotel, she was told to go to Weinstein’s private room. When she arrived, Weinstein made sexual advances towards her. Judd refused the advances and left the room.
In 1998, Peter Jackson and Fran Walsh were considering casting Judd in The Lord of the Rings film series. After Weinstein told Walsh and Jackson that he had a “bad experience” with Judd and she was a “nightmare to work with,” Jackson and Walsh decided not to cast her.
In order to bring a sexual harassment claim under section 51.9, the statute requires that a plaintiff plead that “there is a business, service, or professional relationship between the plaintiff and defendant.” A plaintiff may bring an action under section 51.9 against persons such as teachers, landlords, physicians, bankers, building contractors, or “a relationship that is substantially similar to any of the above.”
The Ninth Circuit held that the “substantially similar” provision in section 51.9 means any relationship “wherein 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.” The power that Weinstein exercised over Judd’s career is precisely the type of relationship that section 51.9 contemplates.
Weinstein’s primary argument was that framing of the statute this way is improper because an imbalance does not always apply in these types of relationships. For example, a building contractor “might in some situations exercise power over a homeowner during a kitchen demolition.” But California Court of Appeal case law makes clear that whether a particular relationship falls under section 51.9 is based on the specific facts of each case. Even assuming that the power dynamics may be flipped in some scenarios, that “does not negate the reality that a power imbalance nevertheless tends to exist in these relationships under normal circumstances.”
As such, the Ninth Circuit court made clear that section 51.9 underlying purpose is to address the harm that results from these inherently unfair power dynamics. The ruling is a welcomed victory for victims of sexual harassment.