by Autumn Christafore, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
Leading up to and following the release of the film It Ends With Us, rumors of a feud between the two leads—Blake Lively and Justin Baldoni—swirled. The feud ran rampant in the media for most of August 2024 before the public finally seemed to lose interest. That was, until four months after the film’s release when Blake Lively filed a legal complaint against Justin Baldoni, accusing him of sexual harassment and retaliation.[1] Two weeks later, Baldoni countered Lively’s complaint with one of his own, depicting a very different story from that told in Lively’s Complaint.[2] Since then, the media has been in a frenzy figuring out who’s suing who and attempting to unpack the drama.
This article will only discuss Lively’s federal complaint against Baldoni and Wayfarer Studios, not Baldoni’s complaint. Additionally, this article will assume that Lively meets the requirements for a prima facie case of hostile work environment, and will specifically focus on Lively’s allegations of a smear campaign, and whether this “new form of retaliation” meets the standard for retaliation under Title VII of the Civil Rights Act of 1964 (Title VII).[3] Section II will discuss the timeline of events according to Lively’s Complaint, the standard for Title VII retaliation claims, and Lively’s retaliation allegations. Section III will analyze Lively’s claim under the existing Supreme Court precedent and argue that a smear campaign does constitute retaliation, but that Lively failed to prove her sexual harassment complaint was the but-for cause of the campaign. Finally, Section IV will conclude by summarizing the arguments and noting the importance of recognizing this form of retaliation going forward.
II. Background
On August 9, 2024, It Ends With Us, the movie adaptation of Colleen Hoover’s best-selling novel, premiered in theaters. The film tells the story of a young woman who grew up in a violent home and now finds herself in an abusive relationship.[4] However, according to Lively’s recent Complaint, the drama suggests abuse extended beyond the on-screen, fictional characters.
A. The Timeline (Blake’s Version)
Production of It Ends With Us began in May 2023 and lasted until June 2023, when it was suspended due to the Writers Guild of America strike.[5] Lively and other cast and crew members allege that before this pause they experienced “invasive, unwelcome, unprofessional, and sexually inappropriate” behavior by Baldoni and Wayfarer Studios Chief Executive Officer Jamey Heath.[6] The Complaint elaborates that the behavior included improvised physical intimacy, inappropriate questioning and discussion regarding sexual experiences, objectifying and degrading comments, and invasions of privacy.[7]
As a result of this behavior, a cast member lodged a sexual harassment complaint with Wayfarer’s Human Resources department against Baldoni and Heath.[8] However, because both men held leadership positions, they were able to ignore the HR complaints and avoid investigation.[9] On top of this, Lively’s Complaint also claims Wayfarer failed to provide her with “rudimentary employment protections,” such as an employee handbook, a sexual harassment policy, information and training on sexual harassment, respectful workplace expectations, or the proper process and procedure for filing human resources complaints.[10]
In November 2023, a list of seventeen provisions enumerated in a contract entitled “Protections for Return to Production” was agreed upon for implementation.[11] This document was designed to require Wayfarer to cease the inappropriate on-set behavior.[12] The tenth provision of the contract requires:
“There shall be no retaliation of any kind against [Ms. Lively] for raising concerns about the conduct described in this letter or for these requirements. Any changes in attitude, sarcasm, marginalization or other negative behavior, either on set or otherwise, including during publicity and promotional work, as a result of these requests is retaliatory and unacceptable, and will be met with immediate action.”[13]
Another of the provisions required an “all hands meeting” to discuss the implementation of protections for Lively, her employees, and all cast and crew moving forward.[14]
On January 4, 2024, before returning to filming after the strike, Lively addressed the problems on set at the required “all hands” meeting with Baldoni, Heath, and others involved in the film’s production.[15] During this meeting, the parties discussed at length a list of twenty examples of behavior, arising from Lively’s notes, that gave rise to the November contract.[16] All parties agreed that the discussed conduct would cease.[17] Production of the film resumed on January 5, 2024 and concluded on February 9, 2024.[18]
In anticipation of the film’s premiere, Lively and the rest of the cast promoted it according to Wayfarer’s marketing plan.[19] The plan expressly required the cast to focus on Lively’s character’s strength and resilience as opposed to focusing on the film’s domestic violence storyline.[20] The entire cast stayed true to this marketing plan until just before the film’s August premiere when Baldoni pivoted from the plan and shifted his public narrative to focus on domestic violence.[21] Around this time, Baldoni’s team also retained the services of a crisis manager.[22]
Lively alleges this shift occurred largely because Baldoni was absent from the cast’s public appearances.[23] In fact, Lively claims this shift was part of a retaliatory plan formulated against her so that Baldoni and his team could “get ahead of [sexual harassment] claims against him.”[24] This so-called “social manipulation” campaign spread false narratives about Lively and suppressed negative stories about Baldoni.[25] Lively claims the increase in negative media coverage substantially impacted her both professionally and emotionally.[26] As a result, on December 21, 2024, Lively filed a sexual harassment and retaliation complaint with the California Civil Rights Department against Baldoni, Heath, and Wayfarer.[27] Then, on December 31, 2024, Lively filed a lawsuit against Baldoni, his publicist, and Wayfarer in the Southern District of New York, alleging sexual harassment and retaliation under Title VII and various other state law claims.[28]
B. The Law on Retaliation
Title VII of the Civil Rights Act prohibits employment discrimination against individuals, concerning their compensation, terms, conditions, or privileges of employment, based on race, color, religion, sex, and national origin.[29] The Supreme Court has made it clear that this language “is not limited to economic or tangible discrimination,” but instead is broadly interpreted to include the entire spectrum of disparate treatment in employment, including requiring employees to work in a hostile or abusive environment.[30]
To establish a prima facie hostile work environment case under Title VII, a plaintiff must prove that the unwelcome discriminatory conduct is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”[31] To determine whether an environment is “hostile,” courts will consider factors such as the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, and whether it reasonably interferes with the person’s ability to perform their job.[32]
Title VII prohibits two main forms of wrongful employer conduct.[33] The first type—often referred to as status-based discrimination—prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, and promotions.[34] The second category is retaliation, which occurs as the result of an employee opposing, complaining of, or seeking remedies for unlawful workplace discrimination.[35] The anti-retaliation provision of Title VII specifically provides:
“It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.”[36]
In Burlington Northern, the Supreme Court solved the circuit split regarding the scope of the anti-retaliation provision.[37] The circuits were at odds over the reach of the anti-retaliation provision’s “discriminate against” phrase, and whether the provision confined retaliation to activity affecting the terms and conditions of employment.[38] The Court held that the anti-retaliation provision extends beyond workplace and employment-related retaliatory acts and harm.[39] Interpreting this provision to provide broad protection from retaliation helps ensure cooperation, upon which the accomplishment of the Act’s primary objective depends.[40] The Court further stated that the provision does not protect individuals from all retaliation—such as “petty slights”—but from retaliation that produces an injury or harm.[41] Thus, in order to prove retaliation under Title VII, a plaintiff must show that a reasonable employee would also find the challenged action materially adverse—meaning it would dissuade a reasonable worker from making or supporting a charge of discrimination.[42]
In University of Texas Southwestern Med. Ctr. v. Nassar, the Supreme Court defined the causation standard for Title VII retaliation claims.[43] Previously, the Fifth Circuit held that retaliation claims require only a showing that retaliation was a motivating factor for the adverse employment action.[44] This lessened standard, typically only used for status-based discrimination and not retaliation, holds an employer liable even if they can establish other legitimate, non-discriminatory reasons for the adverse action.[45] However, four Fifth Circuit judges dissented from the court’s decision declining to rehear the case en banc, arguing that the Circuit’s application of the motivating-factor standard to retaliation cases was an “erroneous interpretation of Title VII.”[46]
The Supreme Court granted certiorari to solve the dispute regarding the proper standard of causation for Title VII retaliation claims.[47] In doing so, the Court noted that causation is a standard requirement of any tort claim and usually requires the plaintiff to show that the harm would not have occurred in the absence of, or but for, the defendant’s conduct.[48] Using this as its guide, the Court held that Title VII retaliation claims must be proven according to this heightened “but-for” standard. Thus, the plaintiff is now required to establish that the employer’s desire to retaliate was the but-for cause of the challenged employment action.[49] Meaning, if not for the employee’s protected activity, such as reporting discrimination, the alleged adverse action by the employer would not have occurred.
C. Blake’s Retaliation Claim
Through her lawsuit, Lively seeks to “shine a light” on a “new form of retaliation,” and to prevent others who choose to speak out against sexual harassment from experiencing what she has.[50] She specifically alleges that Baldoni and his Wayfarer associates “embarked on a sophisticated press and digital plan” against her in retaliation for speaking up about misconduct on set.[51] This plan included engaging in “social media mitigation and proactive fan posting to counter the negative,” “social manipulation,” and “astroturfing”—the practice of publishing opinions or comments on the internet that appear to come from ordinary members of the public, but actually come from a particular company or group.[52] Lively believes the acquired text messages between Baldoni, his Wayfarer associates, and members of his PR team reveal the purpose of the “social manipulation” plan; to conceal the pattern of Baldoni’s harassment and other misconduct and to retaliate against Lively by “battering her image, harming her businesses, and causing her family severe emotional harm.”[53]
Baldoni serves as the co-founder and co-chairman of Wayfarer Studio, and Mr. Heath is the Chief Executive Officer.[54] Baldoni also served as the director, executive producer, co-lead actor, and ran production on It Ends With Us.[55] As the studio head and director, all actors, crew, and staff reported to Baldoni, including Lively.[56] During filming and production, Lively was considered an employee under Title VII, employed by Wayfarer and It Ends With Us Movie LLC.[57] Thus, as Lively asserts, Title VII was in “full force and effect” and applicable to Lively as a member of a protected group.[58]
Through her second cause of action, Lively alleges retaliation in violation of Title VII by maintaining that her actions in reporting sexual harassment and misconduct are “protected activity” under Title VII.[59] She also claims that since engaging in the protected activity, Wayfarer and its executives subjected her to an adverse employment action by launching a coordinated campaign to cast her “in a false light during the publicity and promotion of the Film and thereafter.”[60] Lively further contends that her engagement in the protected activity is the but-for cause of the Defendant’s conduct, and has continued as a means of discrediting her for publicly disclosing her concerns to irreparably damage her career.[61]
III. Discussion
Upon a finding that the facts alleged in Lively’s complaint are all true, the court will likely find that the alleged smear campaign against her is a materially adverse action and amounts to retaliation under Title VII. Her biggest obstacle, however, will be attempting to prove that Baldoni and Heath’s behavior was the but-for cause of the smear campaign against her. To obtain her desired result, Lively must correctly answer two important questions set forth by Supreme Court precedents.
A. Would a Reasonable Employee Find the Smear Campaign Materially Adverse?
Typically, a materially adverse employment action refers to termination or a change in an employee’s duties.[62] This was the case in Burlington Northern, where the plaintiff, a female railway maintenance worker, alleged retaliation under Title VII after she was reassigned to a new position and had her pay suspended, immediately following her sexual harassment complaint.[63] However, the language in Burlington Northern makes it clear that the scope of Title VII’s anti-retaliation provision, and what constitutes a materially adverse action, is not limited to employment-related retaliatory acts. Instead, it extends to all retaliatory acts producing injury or harm, such that it would dissuade a reasonable worker from reporting discrimination.[64]
Lively’s complaint is different, as typically a smear campaign is not used in the employment context and is instead accompanied by a defamation suit.[65] Regardless, Lively may be correct in asserting that a new form of retaliation now exists, given the language of the Court in Burlington Northern. This is especially true when considering that “the significance of any given act or retaliation will often depend upon the particular circumstances.”[66] Thus, to determine whether the alleged smear campaign against Lively qualifies as a materially adverse action, the court will simply need to determine whether the smear campaign is enough to dissuade a reasonable worker from reporting or supporting a charge of discrimination. The likely answer to this question is yes.
In Burlington Northern, the Court found sufficient evidentiary basis to support a retaliation claim because the plaintiff was reassigned from her typical everyday duties and suspended without pay.[67] The Court reasoned that many employees would find a month without pay a serious hardship and would likely choose retaining their job over filing a charge of discrimination.[68] The actions Lively alleges she faced are arguably much worse. Subjection to a social manipulation plan designed to tarnish her reputation by circulating past interviews, pushing an increased amount of negative media coverage, and having her “canceled” by the general public would almost certainly deter a reasonable employee from coming forward with sexual harassment or discrimination claims. Given the circumstances of the events that allegedly occurred during and after the filming of It Ends With Us, the smear campaign orchestrated by Baldoni and his team satisfies Burlington Northern’s “reasonable employee” test.
B. Would the Smear Campaign Have Occurred if Lively Did Not Voice Her Concerns?
To successfully allege retaliation under Title VII, Lively must also prove that the smear campaign against her would not have taken place if she had not complained about the inappropriate conduct that took place during filming. The text messages documented in Lively’s complaint occurring between members of Baldoni’s team are problematic for her in meeting this heightened standard. While the text messages are more than enough to prove Baldoni’s team intended to target her with their campaign, they do not explicitly explain the reason for launching the campaign.
The texts include a financial quote for a full social takedown, a full social crisis team, and the creation of social fan engagement to help change the narrative in the media.[69] Another text from Baldoni’s hired crisis manager, regarding a friend in the media read, “she [the friend] . . . is armed and ready to take this story of Blake weaponizing feminism to any of her outlets the minute we give her the green light. She hates Blake . . . and will do anything for us.”[70] Yet another text between the hired crisis manager and Baldoni’s publicist states, “We can’t write it down. We can’t write we will destroy her. . . Imagine if a document saying all the things that he wants ends up in the wrong hands.”[71]
From these texts and the many others depicted in Lively’s complaint, it is evident she is the target of the campaign, but the reason why is not clear. Lively alleges that Wayfarer and its PR team knew about her claims and that as early as May 2024, Baldoni informed his team of the need for a plan to get ahead of the claims against him in case Lively went public.[72] She further alleges that the plan took shape with Wayfarer’s retention of a crisis manager, but fails to prove this by more than her assumptions.[73] This leaves the question of whether this is enough to prove causation.
The likely answer is that there is not enough evidence to prove causation. Lively can plausibly prove that retaliation was a motivating factor in the smear campaign against her, but she has yet to prove that the campaign would not have occurred if she had not come forward about the misconduct on set. Her complaint notes that the plan was created as a means for Baldoni to explain why he was not present with the rest of the cast during the film’s promotion.[74] Based on this line of reasoning, Baldoni still might have launched the campaign even if Lively had not complained. If what she alleges is true, that many of the other cast members felt uncomfortable around Baldoni, they still may have chosen to appear in public separately. This means Baldoni may still have felt pressured to do something to save his reputation, such as casting Lively in a negative light. Thus, at this stage in the litigation, Lively has likely failed to prove that her sexual harassment complaint was the but-for cause of Baldoni’s smear campaign against her.
IV. Conclusion
With the evidence currently available, the court should find that a smear campaign satisfies Burlington Northern’s “reasonable employee” test. The Supreme Court’s language explicitly states that this test is circumstantial, and as the world and its circumstances change, the law must be flexible enough to adapt to these changes. Despite this, the court should also find that Lively failed to meet the causation standard because she cannot prove that her charge of discrimination was the but-for cause of the campaign. Luckily for Lively, the court is not set to hear this case for over a year, giving her plenty of time to gather the necessary facts to succeed on her claim. Regardless of the outcome for Lively, this case will be one to follow for employers and employees alike, as it will determine whether a new form of retaliation now exists.
[1] Lively v. Wayfarer Studios, LLC, No. 1:24-cv-10049 (S.D. N.Y. Dec. 31, 2024).
[2] Yasmin Rufo, Blake Lively and Justin Baldoni: What you need to know, BBC, (Feb. 04, 2025), https://www.bbc.com/news/articles/cewxj0qw2p9o.
[3] Lively, No. 1:24-cv-10049 at 74.
[4] Amy Tikkanen, It Ends with Us, Britannica, https://www.britannica.com/topic/It-Ends-with-Us (last visited, Feb. 9, 2025).
[5] Lively, No. 1:24-cv-10049 at 17.
[6] Id.
[7] Id. at 18-22, 24-25.
[8] Id. at 23.
[9] Id. at 18, 26.
[10] Id. at 26.
[11] Id. at 3.
[12] Id.
[13] Id. at 31.
[14] Id.
[15] Id. at 1.
[16] Id. at 32.
[17] Id. at 2.
[18] Id.
[19] Id. at 33.
[20] Id.
[21] Id. at 34.
[22] Id. at 38.
[23] Id. at 34.
[24] Id. at 36.
[25] Id. at 43-49.
[26] Id. at 71.
[27] Nardos Haile, An updated timeline of the full Blake Lively and Justin Baldoni beef, Salon (Jan. 29, 2025, 5:09 PM), https://www.salon.com/2025/01/29/blake-lively-justin-baldoni-timeline/.
[28] Lively, No. 1:24-cv-10049.
[29] Burlington N. & Santa Fe Ry. V. White, 548 U.S. 53, 56 (2006); Harris v. Forklift Sys., 510 U.S. 17, 21 (1993).
[30] Harris, 510 U.S. at 21.
[31] Id.
[32] Id. at 23.
[33] Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342 (2013).
[34] Id.
[35] Id.
[36] 42 U.S.C. § 2000e-3.
[37] Burlington N. & Santa Fe Ry. V. White, 548 U.S. 53, 56 (2006).
[38] Id. at 57.
[39] Id. at 67.
[40] Id.
[41] Id. at 67-68.
[42] Id. at 68.
[43] Univ. of Tx. Sw. Med. Ctr. V. Nassar, 570 U.S. 338, 342 (2013).
[44] Id. at 345.
[45] Paul W. Mollica, What’s on the Secret Title VII Menu?: Proving “Motivating Factor” and “Same Action” Under the 1991 Civil Rights Act, 35 ABA J. La. & Emp. L. 1, 53, 64 (2020).
[46] Nassar, 570 U.S. at 346.
[47] Id.
[48] Id. at 346-47.
[49] Id. at 352.
[50] Lively v. Wayfarer Studios, LLC, No. 1:24-cv-10049 (S.D.N.Y. Dec. 31, 2024).
[51] Id. at 5.
[52] Id. at 5-6.
[53] See Id. at 7-13.
[54] Id. at 17.
[55] Id.
[56] Id.
[57] Id. at 76.
[58] Id.
[59] Id. at 77.
[60] Id.
[61] Id.
[62] See Crady v. Liberty Nat’l Bank & Tr. Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993) (“A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities . . .”).
[63] Burlington N. & Santa Fe Ry. V. White, 548 U.S. 33, 57-58 (2006).
[64] Id. at 67.
[65] See generally Ctr. for Med. Progress v. Planned Parenthood Fed’n. of Am., 551 F. Supp. 3d 320 (S.D.N.Y. 2021); Bacon v. Nygard, No. 150400, 2015 N.Y. Misc. LEXIS 2813 (N.Y. Supp. July 28, 2015).
[66] Burlington N., 548 U.S. at 69.
[67] Id. at 70.
[68] Id. at 72.
[69] Lively v. Wayfarer Studios, LLC, No. 1:24-cv-10049, 41 (S.D.N.Y. Dec. 31, 2024).
[70] Id. at 42.
[71] Id. at 45.
[72] Id. at 36.
[73] Id. at 38.
[74] Id. at 34.
Cover Photo by Jon Tyson on Unsplash.
