Sexual Harassment in Professional Relationships Outside of the Traditional Employment Relationship

As the reckoning of the #MeToo movement continues to make headlines, the public continues to learn about the and strengths and limits of the law. It was recently reported that portions of actress Ashley Judd’s sexual harassment lawsuit against producer Harvey Weinstein had been thrown out. In light of the many women who have accused Weinstein of reprehensible behavior, this wasn’t welcome news.

But though Judd didn’t win on this count, there is still a silver lining for women and men who decide to bring suits against their harassers in the future.

What makes Judd’s case somewhat unique is that she filed her claim, not based on a conventional employment relationship, but on sexual harassment occurring in a “professional relationship” (i.e. the relationship between producer and actress). The harassment allegedly occurred in a hotel room, where a business meeting was scheduled to take place, as opposed to an office. 

This article was written to briefly discuss Judd’s lawsuit against Weinstein as an illustration of harassment law in California, particularly the Unruh Civil Rights Act, which deals with professional relationships. Those who deal with professional relationships outside of a conventional workplace might find particular interest in this post.

If you believe you’ve suffered harassment related to a professional relationship, contact our office to discuss your case. 

Judd’s Lawsuit, The Basics

Ashley Judd’s lawsuit against Harvey Weinstein was first reported on in Spring of 2018. The alleged harassment had occurred back in the mid 1990s. She claimed that she had met with Weinstein in a private hotel room in Beverly Hills to discuss potential film roles and to “build her professional profile.” But Weinstein appeared for this meeting in a bathrobe, asked if she would watch him take a shower, and asked for a massage. Judd said she refused his requests and fled the room.

A year after the alleged incident, Judd was being considered for a role in the Peter Jackson helmed Lord of the Rings trilogy, but didn’t get the part. In 2017, Jackson publicly stated that Weinstein had told him not to hire Judd for the Lord of the Rings part because she was a “nightmare to work with.” Jackson further stated “I now suspect we were fed false information.” As a direct result of this information, Jackson said Judd’s name was removed from the casting list.

After Jackson’s public revelation, Judd sued Weinstein alleging defamation and sexual harassment in professional relationships. While the judge considering the case allowed the defamation portion of Judd’s case to proceed, the sexual harassment portion was thrown out. The reason? The section of law Judd and her attorney sued under did not cover professional relationships in the film industry at the time. Though the law was amended in 2018, the court ruled it could not be applied retroactively. Judge Phillip Gutierrez stated however that his ruling didn’t mean Judd wasn’t harassed. He wrote:

“The Court makes clear that it is notdetermining whether Plaintiff was sexually harassed in the colloquial sense of the term. The only question presented by the current motion is whether the harassment that Plaintiff allegedly suffered falls within the scope of the California statute that she has sued under.”

Though Judd’s harassment claim was thrown out, Weinstein faces a charge of rape in a separate case. 

Sexual Harassment from Professionals Under the Unruh Civil Rights Act | Branigan Robertson

What the Law Says About Professional Relationships

The specific code sited in Judd’s case is California Civil Code § 51.9. The Unruh Civil Rights Act was designed to prevent sexual harassment in relationships taking place outside of the conventional workplace environment. The types of relationships covered prior to 2018 did not include producers or directors, however, this has changed. 

The law states that harassers, including producers and directors, can be held liable if the plaintiff can prove a number of elements, including:

“There is a business, service, or professional relationship with the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party.”

The specific professionals listed under this section of law include:

  • Physician
  • Psychotherapist
  • Dentist
  • Attorney
  • Social Worker
  • Real Estate Agent
  • Real Estate Appraiser
  • Investor
  • Accountant
  • Banker
  • Trust officer
  • Financial Planner
  • Loan officer
  • Collection Service
  • Building Contractor
  • Escrow Loan Officer
  • Executor
  • Trustee
  • Administrator
  • Landlord
  • Property Manager
  • Teacher
  • Elected Official
  • Lobbyist
  • Director or Producer

The law also includes any relationship that is substantially similar to those listed above.

What Constitutes Harassment Under The Unruh Civil Rights Act? 

Section 51.9 of the civil code lays out specifically what constitutes harassment. The law states:

“The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.”

When Should You Contact an Attorney?

When a person experiences harassment in a conventional workplace, it’s often easier to know when to contact an attorney. Often, a person will seek legal help after they’ve been fired, or when the harassed employee has had enough and picks up the phone. However, in cases involving professional relationships where a company isn’t directly involved, there often isn’t an employment agreement in place.  This is why if you have questions, you should ask an attorney.

The office of Branigan Robertson generally takes cases on a contingency basis, which means the client doesn’t pay out of pocket expenses. Rather, the attorney is paid with a portion of the final settlement. Robertson’s office also provides free consultations.

If you have questions about professional relationships or sexual harassment, contact the office of Branigan Robertson, and find out how he can help.

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Should You Keep Emails, Paystubs, & Documents if You Believe Your Boss Isn’t Paying You Properly?

What happens if your boss keeps incomplete records of the hours you worked? Can a company just get away with not paying you your full and rightful wages? What if you decide to challenge your employer in court by providing your own incomplete records or witness testimony? Will you be able to make a case for wage theft based on incomplete evidence of the hours you worked?

The California Court of Appeal has issued a ruling on this very issue, and the decision could benefit workers.

Keep reading to learn a little about this major decision, as well as associated employment issues. 

Don’t forget to check our main pages on overtime and rest breaks. If you have further questions, don’t hesitate to contact our office for more information.

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The Case, a Brief Summary

This case, filed with the California Appeals Court First Appellate District, involved a marketing director named Terry Furry and his former employer, East Bay Publishing. In 2014, Furry sued East Bay for unpaid overtime wages, meal and rest break compensation as well as statutory penalties for inaccurate wage statements.

Furry had been an employee of East Bay Publishing going back to 1996. In 2009 he was promoted to sales and marketing director. Though he was paid a base salary of $20,000 in addition to his commissions, East Bay reportedly did not keep track of the overtime hours he worked. 

After filing his lawsuit, Furry testified to working overtime hours, with some days adding up to 12 hours. Coworker testimony supported his claim.

A lower court ruled that while Furry’s employer failed to keep accurate time records, it also found that his testimony was “too uncertain to support a just and reasonable inference that he performed work for which he was not paid.” 

The appellate court disagreed.

Citing precedent, the appellate court argued that once the plaintiff shows “the amount and extent of that work as a matter of just and reasonable inference,” then the burden of proof shifts to the employer to provide evidence of the precise amount of work performed.

The court further added, “If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may be only approximate.” 

In simple terms, this means courts can rely on incomplete worker-supplied evidence regarding hours worked if the company doesn’t keep accurate wage records of its own. In this case, the incomplete evidence included testimony from Fury’s coworker.

A Word About Wage Theft – It Happens All The Time

The case detailed in this article is just one scenario involving employees being denied proper wages. In some cases, the practice is more overt. Sometimes, employers systematically refuse to pay their workers properly. Whatever the situation, an employee who feels they have not been paid their rightful wages should contact an attorney to discuss their situation.

You Should Keep Your Own Records

This case also illustrates something that any worker dealing with a difficult employer should keep in mind — the need to keep your own records. We generally recommend that folks keep their timesheets, paystubs, and other evidence that a jury could easily understand.

This applies whether you’re dealing with wage theft, discriminationharassment or any number of workplace issues. This might mean keeping detailed notes of conversations or encounters with management, it might also mean saving emails, voicemails and paystubs.

If you believe you’ve experienced wage theft, or have been denied rest breaks, talk to a lawyer to discuss your situation.

Have Questions? Contact our Office

There are a lot of different unlawful situations in which a person might be denied their rightful wages. It can happen when a person works overtime hours, when a person is forced to work on their lunch break, it can even happen when a person is asked to complete small tasks after they’ve clocked out.

Whatever your situation, if your instincts tell you something is wrong, you have nothing to lose by calling an employment attorney. Our office typically doesn’t charge for initial consultations, and cases are taken on a contingency basis. Contact the office of Branigan Robertson with your questions, and find out how we can help.

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Understanding Sexual Harassment in the Workplace – An Employment Lawyer Explains

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Can Employers Demand Your Salary History in a Job Interview?

Unless you’re nuts, chances are good you don’t enjoy searching for a new job. There are countless hours of internet research, time spent obsessing over your resume, and long drives for interviews that often don’t end with a call back.  If and when you do make it to the interview, there’s a lot of tough questions – such as “How much did you make at your last job?” Ouch….

Thankfully, changes in California law have brought a tiny bit of relief to beleaguered job seekers who already have a lot to deal with when finding a career. Employers are no longer allowed to ask about a job applicant’s salary history. 

Be sure to check out Branigan’s video (also below) on this topic or keep reading to find out and what this means for employees. If you have questions about your own employment situation, contact our office to find out if we can help.

What California Law Says About Salary History in Applications

California Labor Code§432.3 (a) states the following:

“An employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment or what salary to offer an applicant.”

Subsection (b) further states:

“An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including compensation and benefits, about an applicant for employment.”

What this Law Means for Employees

This law was designed to strengthen the equal pay act. It’s long been known that women are more likely to be paid less than men. The same goes for people of color when compared to white employees. This law was designed to make it more difficult to continue this practice by allowing workers to keep their salary history private.

What if You’re Asked About Your Salary History?

Keep in mind that If you find yourself applying for a job and are asked questions about your salary history, the employer either doesn’t know the law, or is intentionally flaunting the law. While it’s your decision alone whether or not to discuss your salary history, you might want to think twice about working for a company that starts things off on the wrong foot.

It’s also important to remember the law doesn’t prohibit applicants from sharing salary history with prospective employers. The decision is yours, and you don’t have to share this information.

Have Questions? Watch Branigan’s Video, and Call and Attorney

Be sure to check out Branigan’s video on Labor Code §432.3. If you have questions about labor law, or you believe your employer has acted unlawfully, contact the officeof Branigan Robertson to schedule a consultation.

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Should You Sue Your Employer?

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New Video on Employment Classification – Exempt vs. Non-Exempt and the Laws Around Unpaid Overtime

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New Harassment Video – How Much Are Cases Worth?

I’ve made a detailed video on how hostile work environment cases are valued. What makes a “big” case big?

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