Anti-discrimination laws treat sexual harassment in the workplace as a form of sex or gender discrimination. In order for these laws to apply, the alleged acts must occur in a workplace in the context of an employment relationship. The #MeToo and #TimesUp movements largely began in the entertainment business, in which employment relationships are rarely as certain as this. A lawsuit filed in October 2019 illustrates an area of uncertainty in sexual harassment law. The plaintiffs are former students at a now-closed acting school that had locations in Los Angeles and New York City. New York sexual harassment attorneys must demonstrate an employment relationship in most circumstances, although state law covers some situations in which no direct employer-employee relationship exists. The lawsuit takes advantage of a provision in California law that directly addresses the entertainment business.
Quid pro quo sexual harassment occurs when submission to some sort of sexual activity is a condition of getting or keeping a job. Some clearly inappropriate situations, however, might not quite fit this description. With the allegations against the Hollywood producer that kicked off #MeToo, for example, submitting to his alleged sexual demands was often a sort of gatekeeping, and not necessarily about getting cast in a specific film. California has enacted a law that directly addresses this kind of situation.
A person in California may be liable for sexual harassment when they are purportedly in a position of authority or power over a plaintiff, such as a “director or producer.” Cal. Civ. Code § 51.9(a)(1)(H). The plaintiff must also prove sexual advances or demands, or hostile and unwelcome sexual remarks or conduct, along with economic loss or personal injury. Id. at §§ 51.9(a)(2) – (3). The New York State Human Rights Law allows non-employees to claim sexual harassment in a workplace when they are present in a position like contractor, subcontractor, or consultant. N.Y. Exec. L. § 296-D. This may cover many of the same situations, even if it does not specifically mention roles like director or producer.