Reply to Lively/Baldoni Lawsuit Part 2

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Reply to "Lively/Baldoni Lawsuit Part 2"

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[quote=Anonymous]For those of you without twitter, here's the excerpts from the opinion:

When Lively first met with Baldoni in December 2022 to discuss possibly participating in the Film, R.56.1 11 74, 436, Baldoni told Lively—who was pregnant with her first boy at the time— that he was circumcised, Shapiro Decl., Ex. 24 at 51:21-52:05; R.56.1 9 75. Lively found the disclosure uncomfortable and unnecessary, but it occurred in the context of a discussion about the "different medical decisions people make these days, including circumcision for male babies," a topic that Lively herself may have introduced. Shapiro Decl., Ex. 24 at 51:21-52:05; R.56.1 9 75. More importantly, it occurred before she began working on the Film. It therefore could not have created a hostile work environment. See Velez v. N.Y.C. Police Pension Fund Article II, 2019 WL 1382884, at *9 (S.D.N.Y. Mar. 27, 2019) ("[A]ny incidents giving rise to the hostile work environment claim must have occurred during the plaintiff's employment.").

at certain roles as athletic events. And this is one of them.... And that's great," R.56.1 9 37;
Shapiro Decl., Ex. 44. Given these statements, Baldoni's actions even if they could be viewed
 as gently pushing Lively to lose weight, which is not necessarily supported by the evidence-
could not fairly be described as discrimination "because of" Lively's gender.

Under this framing, it would be difficult to view Baldoni's conduct as reflecting hostility or bias based on gender. He was acting in the scene.
Assuming he was improvising, the conduct was not so far beyond what might reasonably be expected to take place between two characters during a slow dancing scene such that an inference of hostile treatment on the basis of sex would arise. At least in isolation, the conduct was directed to Lively's character rather than to Lively herself. Creative artists, no less than comedy room writers, must have some amount of space to experiment within the bounds of an agreed script
without fear of being held liable for sexual harassment. See Lyle, 132 P.3d at 225.

Other conduct, particularly viewed in isolation, also would not give rise to a claim for
hostile work environment. Prior to principal filming, Baldoni proposed certain edits to the
screenplay, including ones related to sex, that Lively believed were "gratuitous." R.56.1 9 92.
That Baldoni suggested scenes involving sexual acts in the context of developing a motion picture involving such adult themes did not create a "sexually objectionable environment" or an environment hostile to women (or to men) because of sex. It would be "neither surprising nor unreasonable from a creative standpoint" for both Baldoni and Lively to have drafted sexually explicit material, even if some of it was not to the taste of the other. See Lyle, 132 P.3d at 225 (Cal. 2006). Indeed, Giannetti had written to Baldoni that Sony was "going to try and get as much tasteful hot sex as you can." Shapiro Decl., Ex. 84.26[/quote]

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