American actress and film producer, Blake Lively, has filed a complaint with the California Civil Rights Department, and later a federal lawsuit in New York, against co-star and fellow Hollywood titan, Justin Baldoni, alleging misconduct during and after the filming of the movie, “It Ends with Us”. Wayfarer Studios, the film’s production company (of which Baldoni is a co-founder) and Lively’s employer, along with other companies and individuals who worked on the film, are also named in the complaint and federal lawsuit.
Lively alleges that in response to her raising complaints of sexual harassment against Baldoni and Jamey Heath, the Chief Executive Officer of Wayfarer Studios, the studio and Baldoni retained a crisis communication specialist to “take down” Lively and plant negative stories about her in the media in retaliation. The stories were designed to make Lively appear difficult to work with and insensitive to the central theme of the film, domestic violence. Lively’s complaints include allegations that Baldoni and Heath discussed their sex lives with Lively, that Heath showed Lively “pornography”, that Baldoni allowed non-working actors and his “friends” to observe scenes where Lively was “in a state of nudity” or “simulated nudity”, that Baldoni and Heath pressured Lively to disclose details of her sex life, that Baldoni would enter her trailer while she was undressed and when she was breastfeeding, and that Baldoni added intimate scenes between characters that were not pre-approved. She claims that an “all hands meeting” took place in January 2024 to address the hostile work environment and Wayfarer Studios agreed to implement protections for Lively including employing an intimacy coordinator on set.
Baldoni has denied these allegations and has since instigated a separate lawsuit against the New York Times, who first reported that Lively had filed a legal complaint in an article titled, “We Can Bury Anyone’: Inside a Hollywood Smear Machine”. He alleges that journalists at the newspaper deliberately cherry-picked communications that had been “stripped of necessary context and deliberately spliced to mislead”. It has been reported that a matter of hours after the article was published Baldoni was dropped by his talent agency, WME.
Baldoni’s lawsuit tells an entirely contradictory narrative to that asserted by Lively, where it is alleged that Lively initiated a “strategic and manipulative” smear campaign and used false “sexual harassment allegations to assert unilateral control over every aspect of the production” of the film. Baldoni claims to offer context to events described, for example, that the “pornography” that Lively was allegedly shown, was a video of Heath’s wife’s home birth that was used as part of a creative discussion when planning a birthing scene, and that it was Lively who invited Baldoni to her trailer to run lines with her while she was breastfeeding. It is alleged that the newspaper deliberately overlooked text messages indicating that Lively’s publicist had ‘planted’ stories critical of Baldoni ahead of the film’s release alluding to him being a sexual predator.
Workplace Harassment
While US law will govern this Hollywood dispute, it can serve as a reminder of the complexities that can arise in any workplace when it comes to sexual harassment. Under UK law, sexual harassment occurs when one person engages in ‘unwanted conduct of a sexual nature’ that has the ‘purpose or effect’ of ‘either violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment’ for another person. Since 26 October employers have a positive duty to prevent the sexual harassment of their employees, and the Employment Tribunal have the power to increase compensation by up to 25% in successful sexual harassment claims if an employer is found to have breached this new duty.
The Equality and Human Rights Commission (the “EHRC”) has significant power to address sexual harassment in the workplace such as entering into an agreement with employers suspected of breaching the preventive duty, to require them to implement changes, even before a specific breach has occurred. The EHRC can also conduct investigations into employer practices and publish the findings in a report, issue unlawful act notices requiring an employer to take action, apply for an injunction to prevent the employer from committing an unlawful act, and can monitor employers’ compliance with agreements and take further action if non-compliance is evident. An employee can make a complaint to the EHRC if they have exhausted the employer’s internal grievance procedure.
Separate to sexual harassment, there is harassment ‘related to sex’, which occurs when there is plain unwanted conduct (which might not be of a sexual nature) but is related to a claimant’s sex (being one of the nine protected characteristics set out in the Equality Act 2010).
All allegations of harassment should be investigated promptly, however, when two or more parties have conflicting accounts, it may be difficult to establish the facts. In these circumstances the employer should consider the following:
- Who is an appropriate investigator: if the investigation is conducted by employee, they must be independent, free of bias and influence and have the requisite authority , skill and capacity to undertake the work that is required. Employers should consider appointing an external investigator to ensure independence if they lack the internal resource or skill to conduct a comprehensive investigation.
- The components of harassment: during the course of the investigation the employer should remember that it is the effect of the unwanted conduct that is important, and it is not necessary to establish the alleged perpetrator acted with any intention or malice. The individual raising the complaint does not need to be the intended victim, as employees are protected from the environment that is created as a result of the bad behaviour.
- The context and credibility: the employer should look at the context of allegations and assess if there has been a history of interpersonal conflicts, previous complaints, or inappropriate behaviour that could indicate a pattern. In recent caseOgden v Booker Ltdthe tribunal held that an employee had been unfairly dismissed as his actions, although reprehensible, were not unusual in the context of the “lawless” workplace culture. When determining the credibility of the individuals involved, it is important to examine the surrounding circumstances, the plausibility of the account provided and whether it is consistent and mirrors known facts and general workplace practices.
- Document as much as possible: an employer should document their decision making process including the steps that have not been taken and why, for example recording why and external investigator was not used. Documenting the investigation ensures transparency and provides a clear record in case of further legal proceedings. The investigating officer should prepare a report summarising the steps taken in the investigation and it’s outcome.
What other lessons can employers learn?
- Clear Reporting Mechanisms: Lively’s complaint alleges that Wayfarer provided no way for her to report sexual harassment to an independent person, leaving her only option to report concerns to Baldoni and Heath directly and hold the “all hands meeting”. Employers must ensure that not only are reporting channels clear, but that employees have multiple channels so that they do not have to report bad behaviour to the perpetrator.
- Preventing Retaliation: Lively’s allegations of a “smear campaign” highlight the dangers of retaliation. Employers should communicate to all staff that retaliation will not be tolerated, and such wording should be reflected in the employer’s policies. It may be appropriate to suspend an employee where there is a potential threat to the business or other employees, to properly investigate the allegations (e.g. they may destroy evidence or attempt to influence witnesses), and/or where effective working relationships have broken down. Suspension should not be viewed as a form of punishment prior to establishing facts. Unless there is a clear contractual right to suspend an employee without pay, the employee should receive their usual salary and benefits if suspended.
- Power dynamics: While not without significant influence in Hollywood, Lively allegedly faced harassment from the director of the project that she was working on, and the co-founder and CEO of the production company that employed her. When considering sexual harassment, power imbalances such as these should be taken into account. Where the alleged wrongdoer is in a position of power, witnesses and other potential complainants may fear retaliation or think that they will not be believed.
- Training and Awareness: all employees should undergo training on what conduct amounts to harassment, how to spot harassment and what to do if they feel harassed or witness this conduct.
Should you have any queries in relation to the law on sexual harassment in the UK or would like practical advice on any ongoing issues, please contact Charlotte Gittins or any other member of the Edwin CoeEmployment Team.
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