NYSBA Journal: Lights, Cameras, Harassment: Title VII Protections in the Wake of Lively v. Wayfarer
A recent Second Circuit case, Lively v. Wayfarer, granted summary judgment against Blake Lively's Title VII harassment claims by classifying her as an independent contractor rather than an employee, a ruling this article argues exposes deep inconsistencies in how courts define "employee" across different statutes. The authors trace this confusion through key precedents (Silk, Reid, Darden, Clackamas, and Second Circuit cases like Eisenberg and Salamon), showing how the modern practice of forming single-film production entities makes it nearly impossible for actors to qualify for Title VII protection. They call for the Second Circuit to reconsider whether these borrowed legal tests are truly compatible with anti-discrimination law's purpose, especially given the film industry's well-documented harassment problem.
