Search results for: sexual harassment

On August 12, 2019, New York Governor Andrew Cuomo signed new legislation amending the New York State Human Rights Law (the “NYSHRL”), changing the State law’s previous adherence to certain fundamental principles of federal law concerning employment harassment generally, including the standard for determining employer liability for “hostile work environment” discrimination claims and the availability of punitive damages, among other issues. Whereas New York courts have historically interpreted the NYSHRL based on interpretations of claims filed under Title VII of the federal Civil Rights Act of 1964, the new amendments will alter the applicability of many significant precedents.

The amendment addresses workplace harassment, including but not limited to sexual harassment, against employees in any protected group. Claims of harassment based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or claims based on an employee’s opposition to such misconduct, are subject to the new provisions.

To begin with, the revised NYSHRL will now cover employers of all sizes, and even includes new protections for domestic workers, who will now be protected on the same grounds as other types of employees. Some of the law’s provisions take effect immediately, others within 60 days or 120 days of the law’s passage. Broadly stated, the law purports to provide “increased protections for protected classes and special protections for employees who have been sexually harassed.”

Click here for the full GT Alert, “Attention New York Employers: When It Comes to Workplace Harassment, Times Are Changing.”

Arbitration agreements have remained an area of legal focus in California. On June 30, 2026, Gov. Gavin Newsom signed Assembly Bill No. 2155 (AB 2155) into law, amending California Code of Civil Procedure (CCP) Section 1281 and continuing the state’s focus on arbitration. The amendment provides that arbitration agreements are unenforceable under the California Arbitration Act (CAA) “to the extent” they would be unenforceable under the Federal Arbitration Act (FAA). The new law takes effect on Jan. 1, 2027.

Changes to CCP Section 1281

AB 2155 adds a new subdivision (b) to CCP Section 1281, intended to align the CAA with the FAA: “Notwithstanding subdivision (a), a written agreement to submit to arbitration is not enforceable under this section to the extent the agreement is not enforceable under the Federal Arbitration Act.”

AB 2155’s text expressly incorporates the exclusions identified under the FAA into the CAA. Such exclusions include:

  1. The FAA transportation-worker exemption, involving “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” and
  2. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), which allows an individual alleging a covered sexual assault or sexual harassment claim to litigate rather than arbitrate their claims.

Significance of AB 2155

With respect to the FAA’s transportation-worker exemption, AB 2155 effectively closes the CAA loophole. Under Section 1 of the FAA, certain transportation workers engaged in interstate commerce are exempt from mandatory arbitration agreements. Courts have expanded the scope of this exemption, with recent decisions addressing workers such as rideshare drivers, delivery and last-mile workers, airline-related employees, and other transportation personnel.

Prior to AB 2155, even where the FAA exemption applied, California employers retained an important fallback argument allowing them to seek to compel arbitration under the CAA, which historically did not contain a comparable transportation worker exemption. This allowed California employers to potentially enforce arbitration agreements, even after losing a federal argument.

AB 2155 eliminates this strategy. Under the new law, if an arbitration agreement is unenforceable against a worker under the FAA due to the transportation worker exemption, it will also be unenforceable under the CAA.

The new law has also essentially codified the federal EFAA protections under the CAA. While the EFAA already gives individuals the right to invalidate pre-dispute arbitration agreements with respect to sexual assault and sexual harassment claims, with AB 2155’s amendments, California state law now mirrors the federal rule. Thus, arbitration agreements covering sexual assault or sexual harassment claims are unenforceable under both federal and California state law.

Key Takeaways for Employers

Employers who rely on arbitration agreements with transportation workers should consider reassessing their exposure. Workers who successfully establish FAA transportation worker exemption status now have a stronger basis to avoid arbitration, with no state law fallback available to employers in California.

Similarly, employers may not be able to compel arbitration of sexual assault or sexual harassment claims by pointing to California state law. AB 2155 eliminates the gaps between federal and state law on this issue, and both frameworks now stand together in prohibiting forced arbitration of specific claims.

Because the law does not take effect until Jan. 1, 2027, employers may wish to treat the remainder of 2026 as an opportunity to reassess their arbitration agreements in California, particularly for transportation and other potentially exempt worker populations. Agreements that have not been revisited in light of AB 2155 may provide less protection than employers currently expect.

On April 2, 2026, in Lively v. Wayfarer Studios LLC, 2026 WL 905447, the U.S. District Court, Southern District of New York (SDNY), addressed claims arising from the production of the film It Ends With Us involving actress Blake Lively, actor Justin Baldoni, and entities affiliated with Wayfarer Studios. Although pending in the SDNY, the decision analyzed several issues concerning protections under California’s Fair Employment and Housing Act (FEHA), including worker classification, the breadth of FEHA’s retaliation protections, and the territorial scope of California employment statutes. 

Overview of the Claims 

The dispute stems from the production of It Ends With Us, a film co-produced by Wayfarer Studios and Sony. Blake Lively alleges that director and co-star Justin Baldoni, Wayfarer executive Jamey Heath, and affiliated entities subjected her to sexual harassment and created a hostile work environment during production. Lively’s complaints centered largely on conduct occurring on set during the first phase of production in New Jersey, including alleged unwanted physical contact by Baldoni, comments about her weight and appearance, and an incident in which Heath allegedly viewed her in a state of undress without her consent. 

According to the complaint, these concerns culminated in a January 2024 all-hands meeting, at which Lively presented a written list of conditions for her return to production. Lively alleges that, in response to these complaints, Wayfarer retained California-based public relations professionals, including The Agency Group PR LLC (TAG) and publicist Jennifer Abel, to plant false narratives portraying Lively as a “bully” and “mean girl,” and that Baldoni and Heath directed the execution of this campaign. Lively contends this campaign was intended to damage her reputation and career in retaliation for her complaints about harassment. 

Lively’s claims included harassment and retaliation under FEHA, breach of contract, defamation, and other California statutory causes of action. The court granted the motions for judgment on the pleadings and summary judgment filed by Baldoni, Wayfarer Studios, and their co-defendants as to most of Lively’s claims, but denied those motions with respect to three claims that were allowed to proceed: Lively’s FEHA retaliation claim against Wayfarer Studios and It Ends With Us Movie LLC (IEWUM); an aiding and abetting retaliation claim under FEHA against TAG; and Lively’s breach of contract claim under the Contract Rider Agreement against IEWUM. The case remains pending in the Southern District of New York as to those surviving claims. 

Worker Classification Analysis 

As a threshold matter, the court considered whether Lively qualified as an employee or an independent contractor, ultimately concluding she was an independent contractor as a matter of law. Applying both federal and California standards, the court emphasized Lively’s economic independence, creative control, and project-based relationship with production. While film productions inherently involve scheduling demands and creative coordination, the court explained that such collaboration alone does not establish an employment relationship. This determination proved dispositive of several of Lively’s claims and may be relevant to companies in the film industry. 

For the federal claims, the court applied a common-law agency framework, examining factors such as the degree of control exercised over the work, the skill required, duration of the relationship, method of payment, provision of benefits, tax treatment, and the worker’s ability to pursue other opportunities. The court’s California analysis similarly focused on control and economic independence under the Borello standard. 

Across both frameworks, the court concluded that Lively exercised significant influence over key aspects of production, participated in creative decision-making, negotiated contractual protections, and retained the ability to pursue other professional opportunities outside the film. Those findings supported the conclusion that Lively functioned as an independent contractor, which proved dispositive for her Title VII and California Labor Code Section 1102.5 retaliation claims, both of which require an employment relationship. 

FEHA Retaliation Claims Survive Independent Contractor Classification  

The court concluded that Lively’s classification as an independent contractor did not bar her FEHA retaliation claim. FEHA’s anti-retaliation provision protects “any person” who opposes conduct prohibited by the statute and is therefore not limited to individuals in an employment relationship. On that basis, the court allowed the claim to proceed despite its finding that Lively was an independent contractor.  

The retaliation allegations stemmed from Lively’s complaints regarding alleged harassment and workplace concerns during production, which the court found sufficient to constitute protected activity under FEHA. After those complaints were raised, Lively alleged that Wayfarer and affiliated defendants carried out a coordinated public relations campaign intended to damage her reputation and career. 

The court concluded there were triable issues of fact on all three elements of the FEHA retaliation claim—protected activity, adverse employment action, and causation—and denied summary judgment accordingly. Notably, the court rejected the argument that the alleged campaign constituted only a reasonable defensive measure, finding that certain conduct, if proven, could go beyond permissible self-defense and rise to the level of actionable retaliation. 

Scope of Adverse Action Under FEHA 

Retaliation under FEHA is not confined to traditional employment actions such as termination, demotion, or discipline, but may also encompass broader conduct that could materially affect an individual’s professional standing. In that context, the court noted that allegations of a coordinated reputational campaign, if proven, could constitute actionable retaliation tied to Lively’s complaints. 

The alleged campaign focused on reputational harm rather than conventional workplace actions. According to the complaint, public relations and crisis management professionals were retained to shape media narratives, place or amplify unfavorable stories, and portray Lively negatively in both traditional and online media. The court concluded that such conduct, if proven, could constitute a materially adverse employment action under FEHA because it was reasonably likely to impair future employment opportunities and professional standing, even absent a conventional employment decision such as termination or demotion. The court further noted that alleged retaliatory acts are to be considered collectively rather than individually, and that their impact must be evaluated in the context of the affected individual’s unique professional circumstances. 

Territorial Reach of FEHA and Harassment Claims 

The opinion also addressed the territorial reach of California employment laws. Lively argued that California law should apply based on Wayfarer’s connections to the state. The court rejected the application of California law to certain harassment claims, emphasizing that the key inquiry is where the alleged wrongful conduct occurred, not merely where the employer is headquartered. Because much of the alleged conduct took place outside California, the court held the connection insufficient as to those claims. The court did, however, allow the retaliation claim to survive, finding that Lively had adequately alleged that defendants coordinated a retaliatory “smear campaign” from California. 

The geographic facts were central to this distinction. Much of the alleged harassment and workplace conduct occurred during principal photography in New Jersey, where Lively had negotiated to relocate production. That on-set conduct—primarily involving Baldoni and Heath—occurred outside California and did not support applying FEHA to the harassment claims. By contrast, the retaliation claim survived because it was alleged that the reputational campaign was planned and directed from California by Baldoni and Heath, both California residents, through California-based crisis management firm TAG and its principal. The court concluded this alleged California-based coordination sufficient to establish a nexus for applying FEHA to the retaliation claims. 

Takeaways for Employers 

The Lively decision reflects that classifying a worker as an independent contractor does not eliminate exposure under California employment statutes. FEHA’s retaliation protections extend beyond traditional employment relationships, allowing such claims to proceed even absent an employee-employer relationship. The decision also reflects a broader recognition that actionable adverse conduct may extend beyond conventional employment decisions to include reputational harm and coordinated public-facing actions. 

The UK’s Employment Rights Act 2025 (ERA), which received Royal Assent on 18 December 2025, introduces wide-ranging reforms to UK employment law. The Act spans a broad range of topics, including family-related rights, flexible working, trade union law, zero and low-hours arrangements, unfair dismissal, fire and rehire, collective redundancies, sexual harassment, and enforcement. Some measures require secondary legislation, and implementation will be phased over the next two years.

Click here to read the full GT Alert.

Employers who play music in the workplace – or allow employees to play music in the workplace – beware. The Ninth Circuit Court of Appeals recently held that the content of music played in the workplace could give rise to liability for hostile work environment sexual harassment under Title VII of the Civil Rights Act. While the Ninth Circuit’s analysis was limited to whether the plaintiffs’ claims – as pled – could state a claim, the ruling indicates that such a claim could succeed, at least in theory.

Background

In Sharp v. S&S Activewear, LLC, the Ninth Circuit analyzed whether music played in the workplace can constitute actionable hostile work environment harassment under Title VII. Stephanie Sharp and seven of her warehouse co-workers – including one man – sued their employer, S&S Activewear, alleging that S&S allowed its managers and employees to play “foul and abusive music” in the warehouse. The music was pervasive, according to plaintiffs’ allegations:

Blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape. Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict—let alone evade—the music’s reach. 

Plaintiffs alleged that playing the music constituted a hostile work environment based on sex. Plaintiffs alleged in their complaint that the music played “contained extraordinarily graphic and sexually foul content.”

S&S filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (“Rule 12”), arguing that plaintiffs failed to state a claim because the conduct alleged did not amount to discrimination because of sex. S&S argued that because both men and women claimed offense and because the music was played throughout the facility, it was not directed at a specific sex, specifically. The district court agreed with S&S and dismissed the action because plaintiffs did not allege (1) that any specific group (e.g., women) was targeted, or (2) that any individual/group was subjected to different treatment than another. Plaintiffs appealed the dismissal to the Ninth Circuit.

The Ninth Circuit reversed the district court’s dismissal, holding both that (1) “sexually derogatory content” – including music – could constitute harassment, and (2) content that offends both men and women can satisfy the “because of sex” requirement under Title VII. It is important to note that, as the case was dismissed at the motion to dismiss stage, the court accepted plaintiffs’ allegations as true. Neither court made any factual determination regarding the facts alleged or content of the music allegedly played.

Music as Harassment

The Ninth Circuit held that music – like other content or conduct – in the workplace can rise to sex-based harassment. The court reasoned that the use of derogatory language in the workplace or “lyrics loaded with such sexist slurs” alter the terms and conditions of employment such that they constitute harassment. The court likened music with derogatory, “sexually graphic,” and “misogynistic” language to ubiquitous sexually offensive comments or graffiti in the workplace. The court was, however, clear that it did not intend to “ascribe misogyny to any particular musical genre.”

Harassment Need Not Affect a Single Group

The Ninth Circuit rejected the district court’s finding that discrimination claims were “fatally flawed” because plaintiffs alleged that the music offended both men and women. The court explained that “sexually charged conduct may simultaneously offend different genders in unique and meaningful ways,” and thus male and female employees could bring hostile work environment claims alongside one another. The court rejected what it described as S&S’s “equal opportunity harasser defense,” reasoning that allowing such a defense would empower employers to create a universally hostile work environment as a shield, which “would leave a gaping hole in Title VII’s coverage.”

What This Means for Employers

While employers are generally expected to maintain policies and practices that ensure their employees are not discriminated against or exposed to a hostile work environment, this decision confirms that employers must consider (and potentially address) employee-created work conditions such as the playing of potentially offensive music – and other forms of employee expression, regardless of the chosen medium. Failure to do so may lead to litigation if not liability. This decision puts the employer in the unenviable position of determining whether specific genres, songs, or artists should be allowed in the workplace. The decision leaves unanswered some questions, such as whether employees could state a claim on the basis of music or media by an artist (or even a politician) who has expressed racist, sexist, or other offensive views, even where those views are not evident through the specific content an employer may have allowed.

This decision may have a chilling effect on employers who allow music in the workplace. Employers should remain vigilant about safeguarding employee working conditions, including monitoring what music or other entertainment is being watched or listened to in the workplace.

On Oct. 21, join Greenberg Traurig’s recognized Texas Labor & Employment practitioners to discuss the issues employers face as the “new normal” emerges and takes shape. With the imminent close of the 87th Legislature, the start of a new school year, and the return-to-the-office mandates, Texas employers face a number of new and unanswered questions:

  • Can they require COVID-19 vaccines for their employees?
  • How do they handle challenging COVID-19 vaccine exemption requests?
  • Are they required to mandate masks?
  • Are they required to accommodate COVID-19-related stress issues?
  • How can they mitigate risk under the new sexual harassment law?
  • Can they be held liable under the new Texas Heartbeat Act?

Thursday, October 21, 2021
11:30 a.m. CST (12:30 p.m. EST)

REGISTER HERE.

Speakers 

Jordan V. Cowman
Shareholder
Dallas, TX		 Alicia Sienne Voltmer
Of Counsel
Dallas, TX		 Shira R. Yoshor
Shareholder
Houston, TX

 

2020 saw significant changes in Illinois employment law, and the trend continues in 2021. Among the 2020 changes were Illinois Human Rights Act amendments requiring Illinois employers to conduct annual sexual harassment awareness training of employees and to provide annual reporting of discrimination charges filed against them.

Continue reading the full GT Alert here. 

The holidays are upon us, NYC is bustling with tourists, and, with the typical surge in business this time of year, employers may be thinking about adding a few employees to their December and January schedules. This GT Alert provides important considerations with respect to those seasonal employment offers, including minimum wage, sexual harassment training, NYC’s Paid Safe and Sick Leave Law, New York’s Workers’ Compensation Law, disability benefits, and child labor laws.

Click here to read the full GT Alert.

 In certain organizations, particularly non-profit organizations, volunteers perform services for the organization. In a recent case in the Northern District of Illinois (Volling v. Antioch Rescue Squad, 1:11-cv-04920 (N.D.Ill. Dec. 4, 2012)), the court was faced with the question of whether members of a volunteer rescue squad could sue the relevant service organizations for sexual harassment, discrimination and retaliation. The two organizations moved to dismiss the complaint contending that the plaintiffs were volunteers and therefore excluded from coverage under Title VII.

The court examined several factors in making its determination including “the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989). The court determined that “[n]o one of these factors is determinative,” thus rejecting the defendant organizations’ contention that the absence of remuneration should control. The court stated that remuneration is but one factor in the totality of the circumstances. “The question and degree of remuneration are simply factors to be considered, along with many others, in assessing whether a worker is an ‘employee’ for purposes of Title VII.”

After examination, the court found that the workers “appear to be subject to the strictures of a typical workplace and – importantly – to the control exercised by an employer over paid employees.” Thus, the court determined that the workers qualified as employees who could bring suit under Title VII.

Notably, other courts have imposed a “significant remuneration” requirement when seeking to bring suit under Title VII and that an absence of remuneration can be the determinative factor as to whether a volunteer qualifies as an employee under Title VII.

Nevertheless, although this issue is far from settled, employers should be aware that Title VII may extend to cover volunteers in the workforce and provide volunteers the opportunity to bring suit alleging harassment and discrimination.

 

Greenberg Traurig, LLP (GT) has approximately 2,400 attorneys in 42 locations in the United States, Latin America, Europe, Asia, and the Middle East. GT has been recognized for its philanthropic giving, diversity, and innovation, and is consistently among the largest firms in the U.S. on the Law360 400 and among the Top 20 on the Am Law Global 100. The firm is net carbon neutral with respect to its office energy usage and Mansfield Rule 4.0 Plus Certified. Web: www.gtlaw.com…
Continue Reading Services