In 2018, actress Ashley Judd (“Judd”) sued producer Harvey Weinstein (“Weinstein”) for sexual harassment, defamation, intentional interference with prospective economic advantage, and unfair competition.  Judd alleges that during a meeting with Weinstein to discuss casting opportunities, she was directed to his hotel room where he appeared in a bathrobe and tried to coerce her into massaging him and watching him shower.  See Judd v. Weinstein, No. 2:18-cv-05724-PSG-FFM (C.D. Cal 2018).  After she refused his overtures, Weinstein allegedly defamed Judd by adversely commenting on her professionalism to prominent directors and others in the industry, which hurt Judd’s career opportunities.

Enacted in 1994, California Civil Code Section 51.9 establishes a civil cause of action for sexual harassment in non-employment relationships.  It covers “business, service, and professional relationships” such as those a person might have with a physician, psychotherapist, dentist, attorney, social worker, real estate agent, real estate appraiser, investor, accountant, banker, trust officer, financial planner, collection service, building contractor, escrow loan officer, executor, trustee, or administrator, landlord or property manager, teacher and any substantially similar relationship.  Largely in response to the #MeToo movement, the California legislature amended the statute in 2018 to include “investor, elected official, lobbyist, and director or producer” to the list of covered relationships.

Finding that Judd’s relationship with Weinstein was not covered by the prior version of Section 51.9 and that the 2018 amendment was not retroactive, the trial court dismissed Judd’s sexual harassment claim.  See Judd v. Weinstein, 2019 WL 926343, at *4-8 (C.D. Cal. 2019).  Judd appealed the decision to the Ninth Circuit Court of Appeals.  During oral argument before the Ninth Circuit on May 8, 2020, Judd’s attorney argued that Section 51.9 applied even without the amendment involving “director or producer” because it covered “business, service, or professional relationships,” which described Judd and Weinstein’s association in late 1996 or early 1997.  Weinstein’s attorney countered that Judd did not have a professional relationship with his client at the time of the alleged hotel meeting and that the “directors and producers” wording of the statute could not be applied retroactively.

On July 29, 2020, the Ninth Circuit reversed the district court’s dismissal of Judd’s sexual harassment claim.  The panel held “section 51.9 plainly encompassed Judd and Weinstein’s relationship” at the time of the alleged harassment.  See Judd v. Weinstein, No. 19-55499, 2020 WL 4343738, at *6 (9th Cir. 2020).  The court further held that “their relationship consisted of an inherent power imbalance wherein Weinstein was uniquely situated to exercise coercion or leverage over Judd by virtue of his professional position and influence as a top producer in Hollywood.”  The court also held that “whether Judd and Weinstein’s relationship was in fact an employment relationship outside the purview of section 51.9 was a question for the trier of fact” and remanded for further proceedings.

This is just the latest example we’ve seen of a sexual harassment claim related to an alleged power differential that existed outside the employment setting.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020;, co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.