Background

The Hollywood movie It Ends With Us was released in Australia in August 2024. It stars Blake Lively and Justin Baldoni and tackles sensitive themes including family and sexual violence. Mr Baldoni was also the director of the movie and the co-founder of the production company, Wayfarer Studios. 

In December 2024, Lively filed a complaint against Baldoni making various allegations including sexual harassment and retaliation. The complaint has also been brought against other parties including Wayfarer Studios, its other co-founder, Mr Sarowitz, and its CEO, Jamey Heath. 

Lively allegations 

The complaint makes allegations including:

• Mr Baldoni and Mr Heath described past sexual relationships to Ms Lively, and Mr Baldoni described his previous pornography addiction.
• Mr Baldoni “often referred to women in the workplace as “sexy.””
• “On the second day of filming, Mr. Baldoni made the rest of the cast and crew wait for hours while he cried in Ms. Lively’s dressing room, claiming social media commentators were saying that Ms.Lively looked old and unattractive based on paparazzi photos from the set…”
• Mr Baldoni ignored industry protocols in filming intimate scenes, and “improvised physical intimacy”. It is alleged that Mr Baldoni “discreetly bit and licked on Ms. Lively’s lower lip during a scene” and insisted the scene be filmed over and over again.
• After Ms Lively signed onto the film based on the draft script, Mr Baldoni “personally added graphic content.”
• Mr Baldoni claimed he could speak to the dead and told Ms Lively that he had spoken to her dead father.
• Ms Lively tried to have a meeting with the producers in relation to her concerns. Mr Heath then turned up to her trailer unannounced, when Ms Lively was topless having body makeup removed.  

The complaint also alleges that:

• Mr Baldoni, and his team, engaged in a press and digital plan “described as “social manipulation” designed to “destroy” Ms. Lively’s reputation” and that the plan was backed by “virtually unlimited resources.” The plan was allegedly “in retaliation for Ms. Lively exercising her legally-protected right to speak up and about” the misconduct and to “eviscerate” her credibility.
• Mr Baldoni’s publicist stated in a text message to his crisis communications specialist that Mr Baldoni “wants to feel like [Ms. Lively] can be buried”.
• The PR plan included a practice known as “astroturfing”, “which has been defined as “the practice of publishing opinions or comments on the internet, in the media, etc. that appear to come from ordinary members of the public but actually come from a particular company or political group.”

Baldoni allegations 

Mr Baldoni and Wayfarer Studios, along with other parties, responded by filing a defamation and extortion lawsuit against Ms Lively and her husband, Ryan Reynolds, as well as other parties. The lawsuit alleges that Ms Lively “…lay in wait for months, preparing to publicly attack Baldoni by falsely claiming that he had sexually harassed her” and “stole Wayfarer’s movie…destroyed Plaintiffs’ personal and professional reputations and livelihood, and aimed to drive the Plaintiffs out of business entirely.” The lawsuit also refers to Ms Lively’s “dragons”, which is reported in the media to be a reference to Taylor Swift.

Relevance to Australian sexual harassment laws

Although the power and stardom of the individuals involved are unrelatable to the average person, there are several themes throughout the allegations that appear in claims of sexual harassment in Australia:

• Conduct of a sexual nature: sexual harassment includes unwelcome conduct of a sexual nature in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Ms Lively’s allegations clearly include alleged conduct of a sexual nature.
• Power disparity: According to the Australian Human Rights Commission’s (AHRC) Respect@Work Report in 2020, “Power disparities in society and in the workplace enable sexual harassment.” Ms Lively alleges that she “and others attempted to raise concerns…but they were not addressed given the futility of asking Mr. Baldoni and Mr. Heath to address their own behaviour.”
• Reporting procedures: Ms Lively alleges she was not advised on the process for filing complaints with human resources. AHRC’s 2022 survey of Australian workplaces informs us that sexual harassment is not widely reported, with fewer than 1 in 5 people who experienced sexual harassment in the workplace making a formal report or complaint.
• Victimisation: Ms Lively alleges “retaliation” for making her complaints. Under Australian laws, this is referred to as “victimisation”, and it is unlawful to subject a person to detriment because they make or propose to make a claim under the relevant legislation.
• Leadership: AHRC’s Respect@Work report states: “Leaders have a crucial role to play in creating safe, respectful workplaces. They should be visible and proactive in their efforts to address sexual harassment, challenge inappropriate conduct and celebrate positive behaviour in the workplace, and be transparent about the organisation’s shortcomings.” Leaders, including CEOs and Managing Directors or directors and producers, can play a significant role in preventing sexual harassment in a workplace, or perpetuating it.
• Steps to prevent the conduct? In Australia, sexual harassment in the workplace is against the law, and an employer can be vicariously liable for that conduct unless they took reasonable steps to prevent it. Additionally, in 2022, the Australian government introduced a positive duty imposing a legal obligation on employers to take measures to prevent sexual harassment in the workplace. The obligation also extends to preventing hostile workplace environments, being a workplace environment that is hostile on the ground of sex.
• Education: Ms Lively alleges that she was not provided with an employee handbook, sexual harassment policy, information or any training on sexual harassment, discrimination or respectful workplace expectations or the process for filing HR complaints. If Ms Lively’s allegations are substantiated and Wayfarer Studios did not take these steps, then it is likely that Wayfarer Studios did not take all reasonable steps to prevent the conduct, which would make a hypothetical employer in the same circumstances vicariously liable under Australian laws, and likely to have breached the positive duty.
• Adequate steps: Employers in Australia must consider whether they are taking adequate steps to prevent sexual harassment in the workplace, and should ask themselves:
  • Are there policies and procedures on acceptable workplace behaviour? Do policies state that sexual harassment is unlawful? Are employees inducted into the policies and do they know where to find them?
  • Is there training on acceptable workplace behaviour? Training should be provided regularly and face to face. Tick and flick training must be avoided.
  • Do managers receive tailored training to handle sexual harassment claims effectively? Training should also enable them to educate their teams and normalise conversations about sexual harassment, ensuring employees feel comfortable seeking help.
  • Are reporting processes adequate? Do employees understand how to report sexual harassment? Are there mechanisms for employees to report sexual harassment against the most senior people in the organisation?
• Reputational harm: all parties involved, including Ms Lively, Mr Baldoni and Wayfarer Studios, have suffered reputational damage through these allegations being publicly ventilated. Clearly, these types of allegations can cause significant reputational harm if complaints are not handled adequately in the workplace, and instead are ventilated in the Courts and the media.

Take away points 

As the developments in the Lively and Baldoni case unfold, Australian employers should reflect on whether they have taken adequate measures to fulfill their legal obligations to prevent any similar behaviour, including sexual harassment and a hostile workplace.