Actor Blake Lively’s December 31, 2024, lawsuit against Wayfarer Studios, LLC, director and producer Justin Baldoni, and several others associated with the movie It Ends with Us has cast a spotlight on evolving employment law issues within the entertainment industry. The case underscores the developing nature of workplace standards and serves as a critical reminder for entertainment employers to ensure compliance with both legal obligations and workplace ethics on and off the set. 

Legal Claims

In her 93-page complaint filed in the U.S. District Court for the Southern District of New York, Lively alleges several workplace misconduct violations, including, among other things, sexual harassment, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act (“Title VII”), along with claims under state and local laws. Lively contends defendants subjected her to a harassing and hostile work environment on the basis of her sex/gender. The allegations include inappropriate physical contact and conversations, and the failure to take immediate corrective action despite being aware of the alleged misconduct. Lively further contends that she faced retaliation after reporting the alleged misconduct to her employer when defendants allegedly engineered a “social manipulation” campaign to damage her reputation. Additionally, the lawsuit alleges Lively’s privacy was invaded while breastfeeding or pumping milk on set.

Key Considerations for Entertainment Employers¹

1. Expanding Definition of the “Workplace” for Creative Employers

In a time where remote work has become a societal norm, and the traditional idea of a physical workspace has expanded, employers in the entertainment industry should be aware of how broadly a “workplace” may be defined. This case highlights how the workplace in the entertainment field—and liability for workplace misconduct—can extend beyond physical sets to encompass other locations where employees work together in production-related environments, including virtual and promotional settings.

2. Retaliation Extending Post-Employment

Lively’s allegations that she was subject to a well-orchestrated public relations attack and reputational sabotage serve as a reminder that digital and public domains are not beyond the reach of employment anti-retaliation laws. Under federal and state employment anti-retaliation laws, such conduct may still expose employers to liability, even after an individual’s formal association with the company ends. Employers should exercise caution in managing disputes with former talent, as courts appear increasingly willing to extend liability into the post-employment arena.

3. The Breastfeeding Footnote

This complaint only mentions breastfeeding / pumping in passing and does not bring an independent claim related to an employee’s right to breastfeed / pump. But employers should be aware that pregnant and breastfeeding protections have been on the rise. For example, in 2023 the Pregnant Workers Fairness Act (PWFA) went into effect, which provides greater accommodation rights for needs related to pregnancy, childbirth and related medical conditions in the workplace.² In 2022 the Providing Urgent Maternal Protections for Nursing Act (“PUMP Act”) went into effect, which amends the Fair Labor Standards Act (“FLSA”), and guarantees employees who are nursing reasonable break time and a private space for pumping.³  

4. The Creative Necessity Defense and Other Defenses

Hollywood has long grappled with the tension between creative expression and workplace protections. Creative employers may point to the “Creative Necessity Defense” when defending explicit discussions that occur on and off set. Employers may argue that discussion of sensitive topics, like sex, are integral to the creative process of producing a television show centered on adult relationships and humor. For example, if faced with a sexual harassment claim, an employer may have to prove that the alleged actions are part of the artistic and collaborative process, intended to elicit authentic performances or enhance the film’s emotional depth.

Employers may also try to show that an on-set complaint did not cause the conduct that occurred after the complaint. The retaliation claim in this case hinges on linking the post-employment PR campaign directly to protected activity, i.e., raising harassment concerns within the context of employment / the workplace. Employers should be sensitive to evaluate whether post-production actions could be perceived as retaliatory versus part of ordinary PR efforts. Establishing causation in retaliation claims is often complex, and creative disputes or media dynamics driving a media campaign may slip into retaliatory conduct.

Implications for Entertainment Employers

High-profile lawsuits quickly garner attention in the media and tend to engage a broader conversation of workplace misconduct that can lead to increased scrutiny of workplace behavior. Employers both in the entertainment industry and outside of it should thus endeavor to implement strong safeguards for all employees such as:

• Contract clauses and oral briefings that explain that employees will be exposed to certain explicit language and scenes.
• Contract clauses regarding appropriate conduct and behavior on and off set.
• An investigation and response policy to document the employer’s response after a complaint is raised.
• Training and development activities regarding acceptable conduct and reporting mechanisms for employees throughout the course of the film/play/show and as part of the onboarding of new employees/actors.
• Monitoring of employee dynamics.
• Investing in collaboration tools and platforms that maintain open lines of communication between employer and employees.

The industry standard continues to evolve, and so must employer proactivity. Employers seeking to navigate these issues should consult employment counsel.