PR Firm Can Face FEHA Retaliation Liability for Smear Campaigns, Judge Rules

Judge Lewis J. Liman denied summary judgment for The Agency Group PR LLC on plaintiff Blake Lively’s claim that the firm aided and abetted retaliation under California’s Fair Employment and Housing Act (FEHA).

Lively alleges that Wayfarer Studios LLC and It Ends With Us Movie LLC retaliated against her for complaining about sexual harassment on the set of It Ends With Us by launching a coordinated smear campaign to destroy her reputation.

Lively contends that Wayfarer and IEWUM hired The Agency Group PR LLC, or TAG, to assist with the campaign. She alleges that TAG and its founder planted false narratives online and in traditional media outlets portraying her as a “bully” and a “mean girl,” and worked with others to amplify negative content in an attempt to bury her for engaging in protected activity.

TAG renewed its motion for summary judgment, arguing that it cannot be held liable because its public-relations activities were not “FEHA-regulated.”

Judge Liman rejected the argument, noting that he previously denied summary judgment for Wayfarer and IEWUM on the same retaliation claim. The Court explained that FEHA covers not only traditional employment actions but also conduct reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in their career.

The Court explained that California law eschews strict requirements of traditional adverse employment actions, adopting a flexible approach that includes actions impairing future employment prospects.

Because the activities TAG is alleged to have engaged in are the same ones that could support liability against Wayfarer and IEWUM, TAG’s argument that its participation was outside FEHA’s scope lacks merit.

TAG also argued that FEHA prohibits employers from aiding and abetting third parties, not the other way around. The Court dismissed this as dicta from an unrelated case and noted that FEHA’s aiding-and-abetting provision is most naturally read to prohibit third parties from encouraging or assisting employment discrimination committed by employers.

The motion for summary judgment is denied.