Discrimination in the Movies
In a recent case before the 9th Circuit Court of Appeals, an actor working as an extra in a Marlon Wayans movie (A Haunted House 2) claims he was the victim of racial discrimination and harassment. According to Pierre Daniel, the alleged victim, during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga.’ ” Wayans filed an anti-SLAPP motion claiming Daniel’s claims arose from Wayans’s constitutional right of free speech. Wayans argued the comments were protected. He claimed the “core injury-producing conduct” arose out of the creation of the movie and its promotion over the Internet. The trial court agreed with Wayans finding Daniel failed to establish the probability of prevailing on any of his claims. The trial court entered judgment for Wayans, awarding him attorney fees.
On appeal, Daniel argued that the conduct at issue was not part of the “ ‘creative process’ ” inherent in making the movie because it occurred when the cameras were not rolling. Daniel claimed the comments did not involve the right of free speech or an issue of public interest. Daniel also argued that even if the statements implicated Wayans’s right to free speech, Daniels established a probability of prevailing. The 9th Circuit rejected Daniels argument and affirmed judgment for Wayans.
Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie, which came out in 2014.
Discrimination and Harassment in the Entertainment Industry
This is not the first time the entertainment industry avoided discrimination and harassment claims based on the “creative process.” In 2006, the California Supreme Court threw out a sexual harassment lawsuit against the makers of the hit comedy “Friends”, ruling that vulgar and coarse comments by the show’s writers reflected the “creative workplace” for a comedy with sexual themes.
Employers should not see these decisions as free license to allow racists or sexually inappropriate comments in the workplace. Employers have an obligation to provide a workplace free of sexually or racially inappropriate comments. These “entertainment” cases are outliers resulting from the unique circumstances in the studios. If the same comments were made on a factory floor or a typical office environment, I suspect the court would have gone the other way.
I will use this case in the sexual harassment prevention trainings to emphasize the importance of maintaining an appropriate work environment. The alleged comments occurred in 2013. Four years later Wayans and the other defendants were still defending the case. You can expect they spent hundreds of thousands of dollars to achieve a favorable result. Although the court ordered Daniels to pay Wayans’s attorneys fees, what are the chances that the movie extra has the ability to pay those fees?
If you have a question about inappropriate workplace conduct, contact the Nuddleman Law Firm, P.C. We help employers and employees in a wide range of employment disputes, including race and gender discrimination claims.
Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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