David Harmon: Hi, I’m David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are the Employment Strategists. Welcome to our latest episode, Unscripted Harassment, breaking down Blake Lively vs. Wayfair Studios.
Mariya Gonor: The entertainment industry has long been a focal point for discussions about workplace harassment, power imbalances, and accountability. In fact, it is the entertainment industry that gave us the beginning of the Me-Too movement.
David Harmon: And because of the notoriety of these cases, both in entertainment and within the media industries, the Me-Too movement spread across all industries and thus forced companies to really evaluate their sexual harassment policies and also for the law to catch up.
Mariya Gonor: In many states, the result of the Me-Too movement was more robust protections against sexual harassment and settlements of sexual harassment. While the recent case That was just filed by Blake Lively against Wayfair Studios and its executives, Justin Baldoni and Jamie Heath, and others highlights serious allegations of misconduct within a toxic workplace culture, but more so it highlights to what lengths some employers may go to retaliate as a result of complaints of sexual harassment.
David Harmon: Our listeners should be aware that these are merely allegations at this point. This is not a criminal complaint, and you should be aware of that when you’re listening to the various pundits discussing this case. This is typical in the context of a sexual harassment in employment case. It is in the civil space, not criminal.
Mariya Gonor: That’s a very important thing to point out. So, David, why don’t we Discuss high level general allegations and then we’ll go into the legal implications and the legal framework that applies to these types of complaints.
David Harmon: Well, I think the key thing here is that this was an example of invasion of privacy, crossing the lines of intimacy, all within the context of filming a movie.
Mariya Gonor: Now the other thing I’ll say, and this is quite unfortunate, but some of the allegations that were being made by Blake Lively, I’ve personally heard from other clients. For instance, she’s alleged that Baldoni and Heath discussed with her their prior pornography addiction. I’ve heard that from a client before too.
David Harmon: Well, a lot of these allegations, which, uh, describe inappropriate behavior are not owned only by the entertainment industry.
Mariya Gonor: Yes.
David Harmon: We have definitely seen and heard about these concerns by clients when filing sexual harassment complaints.
Mariya Gonor: Another allegation was that the producers were showing nude videos or images of women to Blake Lively and her employees, including producer’s wife. We’ve heard these too. In fact, recently we had a male complaint of improper images that were shown of porn stars on the computer.
David Harmon: Yes, we also had another situation where an employee was showing pornographic pictures of herself within the company to other employees.
Mariya Gonor: So, unfortunately, these instances are not unusual, but let’s redirect our attention to the Blake Lively allegations. She’s alleged inappropriate conversations and the discussions of her limited experience with pornography consumption. She’s alleged inappropriate conduct when Baldoni entered her trailer and refused to leave when she was not fully dressed, despite the fact that she would ask him to leave on a number of occasions.
David Harmon: Apparently, Mr. Baldoni went beyond meets and bounds of the behavior that was approved, and bitten sucked on Miss Lively’s lower lip during a scene where he improvised numerous kisses on each take. And that conduct was against the permissible lines that Blake Lively had put in place.
Mariya Gonor: Another allegation is that at one point he leaned forward and slowly dragged his lips from her ear down her neck. As he said, it smells so good. None of this was remotely in character according to the complaint.
David Harmon: And then another thing that is alleged is that Mr. Heath approached Ms. Lively and her assistant on set and started playing a video of a fully nude woman with her legs spread apart. And she thought that this was pornography and requested that he stop. So, it’s this sort of conduct that goes beyond the lines that were drawn between the parties as to what the permissible conduct would be on set. And we can get into that a little bit in terms of what the overall agreements were between the parties and how we’ve come to this point.
Mariya Gonor: So, factually, after Blake made these complaints through her attorneys and otherwise, as we will go through in detail, shortly before the movie was released, the complaint alleges that Baldoni with his publicist orchestrated a campaign of disinformation and an aggressive marketing campaign to, quote, bury Blake Lively and to destroy her public image.
David Harmon: So, that’s the quintessential retaliation fact pattern where complaints are made, issues are raised concerning sexual harassment in the workplace, and then the employer goes ahead and tries to damage the complainant and retaliates with adverse action.
Mariya Gonor: Yeah, the goal was to allegedly destroy her credibility to such an extent. That if she were to ever make these complaints public, no one would believe her.
David Harmon: They might have anticipated that this was going to come about, that these complaints would be made. So that was their strategy to try to get ahead of it.
Mariya Gonor: And the strategy was not fully unsuccessful because I don’t know if you recall, David, but when the movie was released, there was a lot of drama going on about, you know, Baldoni and him not being followed by the cast and doing appearances differently. And Blake got a lot of criticism about how she was publicizing the movie. But, according to this complaint, her talking points were approved by Sony, the production company. And it was Baldoni who then overnight pivoted to focusing on specifically domestic violence as opposed to the resilience of the character. And there was a big public backlash about how the movie was marketed by Blake Lively, followed by a number of articles and a number of negative public comments about Blake. All right. Well, with this high level analysis of the factual allegations. Let’s transition into the legal framework that we deal with when we address sexual harassment allegations, sexual harassment claims, and what the courts and administrative agencies look at when they evaluate the facts.
David Harmon: So Mariya, critical to the legal framework are policies and procedures. And industry specific policies and procedures, because the policies and procedures within the entertainment industry are going to be different than within an advertising agency, a manufacturing company, or any type of services industry, just to name a few.
Mariya Gonor: For sure. For sure, but there are certain things that remain the same, right? The conduct that rises to the level of sexual harassment under federal law, because states standards vary a little bit from state to state, but under federal law, a conduct considered hostile when it is unwelcomed conduct and it is severe or pervasive enough. For instance, isolated incidents. generally do not meet the threshold unless these incidents are extremely severe, like unwanted sexual touching. On the other hand, pervasive or an ongoing behavior may rise to the level of hostile work environment.
David Harmon: So, the employer here has certain responsibilities in preventing, investigating, and addressing harassment. However, a precursor to all of that is to have policies and procedures in place. Through a handbook, or through communications via memoranda or otherwise to make the employees aware of what their rights are, what the standards are, and what behavior is impermissible, and how to go about it. And in the complaint, Blake Lively alleges that Wayfair failed to provide her with, with information about the process and procedure for filing human resources complaints.
Mariya Gonor: It is extremely important because an employee must be able to report the unwanted conduct to somebody who will then in turn, have the authority or the power to deal with it, address it, and make sure that the work environment is no longer hostile.
David Harmon: So, in this context. Blake Lively’s attorneys sent a letter, November 9th, 2023, to the production company. And it’s attached as an exhibit to the complaint, wherein they listed 17 protections that were required for Blake Lively to return to production. And in it, and I quote, It states, It is no surprise to the film’s producers that the experience of shooting the film has been deeply concerning on many levels. The complaints of our client and others have been repeatedly conveyed and well-documented through pre-production and photography. Now this is notwithstanding the fact that there was no formal HR complaint procedure in place, then this led to another agreement that was entered as of November 15th of 2023 between the parties where 17 points were agreed to, and that was an agreement that was signed by the production company and by Blake Lively.
Mariya Gonor: Apparently, as part of this agreement, the parties demanded that there be a all hands on deck meeting during which the behavior of Baldoni and Heath was discussed, and the parties then agreed to about 30 different items following that meeting as what not to be done or how Baldoni and Heath are not to be acting, including but not limited to no more showing nude videos or images of women, including producer’s wife to BL, And or her employees.
David Harmon: No more mention of Mr. Baldoni or Mr. Heath’s previous pornography addiction or Blake Lively’s lack of pornography consumption to Blake Lively or to other crew members.
Mariya Gonor: No more discussions to BL and or her employees about personal experiences with sex, including as it relates to spouses and others.
David Harmon: No more descriptions of their own genitalia to Blake Lively.
Mariya Gonor: No more mention to BL and her employees of personal times that physical consent was not given in sexual acts as either the abuser or the abused.
David Harmon: An intimacy coordinator must be present at all times when Blake Lively is on set in scenes with Mr. Baldoni.
Mariya Gonor: An interesting one is no more inquiries by Mr. Baldoni to BL’s Blake Lively’s personal trainer without her knowledge or consent to disclose her weight.
David Harmon: Any scenes by Blake Lively or another performer depicting the character of Lily that involves nudity or simulated sex. must be conducted strictly in accordance with the nudity rider that was agreed to and must adhere to the Blake Lively approved script.
Mariya Gonor: No more entering, attempting to enter, interrupting, pressuring, or asking BL to enter her trailer or the makeup trailer by Heath or Baldoni while she’s nude for any reason.
David Harmon: No more adding of sex scenes, oral sex, or on-camera climaxing by Blake Lively outside the scope of the script Blake Lively approved when signing on to the project.
Mariya Gonor: And then completion of this agreement was that BL and her spouse Ryan Reynolds were to confirm and approve the plan for implementation of the above that will be adhered to for the physical and emotional safety of Blake Lively and her employees.
David Harmon: So, these are unique circumstances that we find within the entertainment industry. However, it’s clear from the complaint, although we only are seeing one side of this through the complaint, but based on what’s been presented here, there were significant parameters that were established by agreement between the parties following the complaint. That had to go to counsel because there was no HR protocol in place in order to file and then to be received in this regard.
Mariya Gonor: Yeah, and then these conditions are being imposed by Blake Lively and her legal team in order for her to return to filming.
David Harmon: Right, she really was trying to, I guess, salvage her role here because what was the alternative to walk away, potentially breach the contract, and try to work this out despite the fact that there was this harassing behavior that was really predominant on the set and in the context of her work on this project.
Mariya Gonor: I think it really highlights how difficult it is for people who are victims of sexual harassment to actually take back some of that power.
David Harmon: It really depicts the disparity in the relationship between employer and employee. And as employment strategists, we certainly are very much aware of the difficulty, as Mariya just stated, in people bringing complaints and the impact that it will have on their current work as well as their long-term career prospects.
Mariya Gonor: You know, one thing that I found striking here is one of the allegations that was made by Blake Lively is that she felt forced to participate in a scene and be nude beyond that to which you’ve previously agreed. And we’re not speaking about somebody who’s just starting out in the entertainment industry. Blake Lively is a household name. She’s the appeal for that movie, right? She was the anchor actor for that movie, I would argue.
David Harmon: Well, she’s a well-seasoned star. And as a result of that, and her apparent power within the industry, even someone at that level was still unwelcome by the actions of the employer.
Mariya Gonor: Yeah. And still felt compelled to go beyond that to which was previously agreed. So that just highlights how coercion and employment is a real and present thing that is faced by everyone. Individuals, no matter how much bargaining power you might have, there is a very interesting legal wrinkle to discuss in connection with these allegations. And while the standard typically is unwelcome conduct, hostile and pervasive, as we’ve discussed in the past in certain professions, what constitutes hostile or pervasive may not be viewed in the same way as in others. And I’ll give you an example. For instance, in our legal profession, when clients come to us complaining that they were subjected to certain actions frequently, They will show us some very revealing and sometimes disturbing images, right? And if that was shown to somebody outside of seeking legal advice, that could constitute harassment. But because it is the nature of our job, the nature of our profession to evaluate these types of images, this would not be deemed harassing for me or David.
David Harmon: It’s not a deemed harassment as it relates to our work. But if you were to show me pictures of yourself, for me to show you pictures of myself, that would be harassment.
Mariya Gonor: Correct. Yes. So here, a very similar sort of pattern could develop because Blake Lively’s job is to act, right, as a love interest of Baldoni on screen. So, the allegations about him improvising and acting and maybe taking it a step beyond that, I think are a little bit complicated with respect to the legal argument because the position that he might take is look improvisation is part of acting I was doing what my job was to act.
David Harmon: Yeah, I mean there are arguments to be made that in order to fully present the character one has to get into character What are the lines that are established for becoming that character? There can be unique standards for certain types of workplaces. I mean, on the whole, sexual harassment laws, and policies apply across the board, across the majority of industries. But the entertainment industry such as in this context, is a bit different.
Mariya Gonor: For sure. It’s hard for me to imagine that if some of the other allegations were to bear out, there wouldn’t be liability, for instance discussing your former porn addiction, discussing the actress’s own views of porn or staying in the trailer when she asked you to leave.
David Harmon: I don’t think the industry matters in that context. It’s crossing the line and there’s no turning back from crossing that line based on that behavior.
Mariya Gonor: Yes.
David Harmon: As alleged in the complaint.
Mariya Gonor: It’s hard to imagine that that would not be viewed either as severe or pervasive.
David Harmon: It speaks for itself.
Mariya Gonor: So, with that in mind, let’s transition to another tranche of this claim, which is the retaliation. Here, the allegations are that Baldoni and his PR team orchestrated this takedown of Blake Lively before the film was even released to undermine her credibility and to impede her ability to make the sexual harassment complaints against him.
David Harmon: So, retaliation takes place after complaints are made. Complaints were made here by Blake Lively and the actions, this adverse action against her were made by Baldoni and the producers.
Mariya Gonor: One of the allegations is that there was an unlimited amount of funds and that one of the producers, Steve Sarovitz was willing to spend as much as a hundred million dollars to ruin the lives of Ms. Lively and her family.
David Harmon: It’s hard to come away from reading the complaint and think that the retaliation is definitely not an issue because of the detail and the supporting evidence that is provided. Within the pages of the complaint.
Mariya Gonor: And whatever efforts were taken, the complaint alleges actually were at least somewhat successful because they have tarnished her character, impeded her ability to do business because Blake Lively is not just an actor, she owns a number of businesses that have suffered as a result of the negative publicity that was brought upon her. But I think, although this is not funny, but I think this part is a little bit funny. Baldoni’s team writes about how it’s not a great idea to put in writing all of the horrible things that we’re going to do to destroy her and then the text message specifically says we can’t send over documents that say we will destroy her because that could get us in a lot of trouble and then the document specifically says a text message specifically says imagine if a document saying all the things that he wants to end up in the wrong hands. It looks like the documents about all the things that he wanted did end up in the wrong hands. So, I think that’s a little, that’s a little funny.
David Harmon: Also, it goes further. You know, we can bury anyone, but I can’t write that to him. I will. I’ll be very tough.
Mariya Gonor: So even though we have Melissa Nathan saying that she cannot write down, allegedly, Melissa Nathan saying that she cannot be writing down all of these things and this cannot be in writing, and they are aware that putting this in writing could present an evidentiary issue, it still gets written down and texted to somebody.
David Harmon: So, not only is the harassment and the failure to follow procedure, those violations, but the retaliation aspect of this is a very significant part of the complaint. And, and stated in the complaint. That Ms. Lively seeks to set the record straight to hold the Wayfair parties and their associates accountable and to shine a light on this new form of retaliation so that it will not be used against any others who seek to stand up and speak out against sexual harassment. And I think that that it really summarizes the essence of this complaint.
Mariya Gonor: We will continue to monitor this story and keep you appraised of all the legal developments. If you want to learn a little bit more about the standards for sexual harassment, please listen to our episode entitled, The Unsolicited Kiss, that went into a great detail analyzing what constitutes harassment.
David Harmon: So, as we do in every episode, Mariya, we talk about best practices for employers and takeaways for employees. So as far as best practices for employers, employers really need to implement clear policies, make sure their handbooks are up to date, and that they have clear protocols spelled out as far as reporting mechanisms.
Mariya Gonor: Lack of such policies and lack of such procedures could impose liability on employers almost automatically. Here, we have the actors are pretty high up. They’re supervisors, essentially, of the employers, right? They’re the CFO and the CEO, I want to say. But if this conduct was being done by somebody who is not that high up, an employer who doesn’t have reporting procedures or reporting policies could automatically be held liable.
David Harmon: Another element to the sexual harassment landscape is the importance of training and having proactive measures to address misconduct. Very important to ensure accountability at all levels, including leadership, as you just indicated, Mariya.
Mariya Gonor: Now, the strategies for employees. As always, we remind you that it is extremely important to report sexual harassment.
David Harmon: It will not stop unless it’s reported. It’s a very gutsy move for an employee to step up and file a complaint. But here, someone as powerful and as well known, with as significant support team behind her. Blake Lively elected to report, tried to report, tried to reach agreement, and notwithstanding that, did not get the resolution as was agreed to, and then was pushed to file a complaint of this nature.
Mariya Gonor: Yeah, these facts bear out to be true. This is pretty egregious violation of law and could potentially expose this employer to significant liability. And employees are reminded that while not all inappropriate behavior may rise to the legal definition of harassment, that doesn’t mean that that behavior should go unaddressed or that it should be unreported. Law creates protections against retaliation by the employers for a reason. It’s make sure that employees are able to freely complain and seek a safe work environment. Finally, it’s important to document incidents of harassment that you’re subjected to or incidents of inappropriate behavior that an employee is subjected to. So, when a report is made, these incidents could be detailed, specified so that HR or legal or whoever is evaluating these issues. has the details necessary to make the proper evaluation.
David Harmon: So, one of the things that we suggest to our listeners is that they listen to our initial episode, The Unsolicited Kiss, which goes into more detail about the sexual harassment landscape. And it’s another situation that is very illustrative as to policies and procedures being so important. and the filing of complaints as being a significant element to that by the employee.
Mariya Gonor: Remember, creating a safe and respectful workplace isn’t just about avoiding legal liability. It’s about ensuring that everyone feels valued and supported in their professional environment. If you witness or experience behavior that feels inappropriate or Uncomfortable. Speak up. Your voice can make a difference. We hope that you found our time together educational and entertaining, but please remember that this is not meant to be legal advice.
David Harmon: If you would like to continue the discussion, please reach out to us at theemploymentstrategists@norris-law.com.