Court rules Blake Lively is not an employee, kills Title VII claims

The threshold question – and the one with the broadest implications for anyone managing a blended workforce – was whether Lively qualified as an employee at all. The court concluded she did not. Applying the well-established thirteen-factor test used to distinguish employees from independent contractors under federal law, the court found that Lively exercised extensive control over the production. She held contractual approval rights over the script, the director, her co-lead, hair and makeup, filming locations, and the use of her name and likeness. In practice, she went much further – leading the production’s location shift from Boston to New Jersey, rewriting portions of the script, overseeing editors, reviewing casting tapes, selecting most of the film’s music, and managing what she herself described as daily HR concerns on set. Her engagement was limited to a defined project, she was paid a flat fee plus contingent compensation, and she was free to take on other work outside her filming window, which she did. 

That classification had immediate consequences. Because Title VII protections apply only to employees, Lively’s federal sexual harassment and retaliation claims were dismissed outright. The same result followed for her retaliation claim under the California Labor Code, which carries the same requirement. 

California’s Fair Employment and Housing Act, however, cast a wider net. Its harassment provisions extend beyond employees to anyone providing services under a contract. While the court still dismissed Lively’s harassment claim under that statute on other grounds, her retaliation claim survived. The court found enough in the record to create a triable question about whether the defendants took adverse action against Lively after she raised workplace safety concerns and negotiated protections ahead of returning to set. 

Those protections are at the center of the second surviving claim. After production paused in mid-2023 due to industry-wide labor strikes, Lively’s attorney sent the producers a list of seventeen conditions – titled Protections for Return to Production – that would need to be met before she would agree to come back. The list included requirements for intimacy coordinators and nudity riders for all intimate scenes. Those terms were eventually formalized in a Contract Rider Agreement signed in January 2024. The agreement included a clause prohibiting any retaliation against Lively for raising her concerns. 

The defendants argued the agreement was unenforceable, either because it lacked consideration or because it was tethered to a longer-form contract that was never signed. The court rejected both arguments. It found that Lively’s decision to return to set – when her obligation to do so was genuinely uncertain – was itself sufficient consideration. And it held that the agreement stood on its own, independent of the unsigned long-form contract. The breach of that agreement now heads to trial.