In a novel case going through the New York state court system, Julie Ormond, Legends of the Fall and Sabrina actress, is suing Disney, Miramax, and her former talent agency who she says failed to protect her from abuse. Ormond’s complaint sought to plead negligent supervision and negligent retention against Miramax and Disney, and negligence and breach of fiduciary duty against her talent agency, CAA, in an attempt to hold them liable. Ormond alleged that Miramax and Disney employed Harvey Weinstein.

The suit states that at the peak of her career, she and Harvey Weinstein returned from a business dinner to an apartment provided by the production company, where he "stripped naked and forced her to perform oral sex on him."  She also states "[t]hat sexual assault on Ormond could have been prevented if Miramax or Disney had properly supervised Weinstein and not retained him while knowing that he was a danger to the women he encountered at work.”

The lawsuit was filed in 2023.

Recently, in an attempt to get the lawsuit dismissed, the companies argued that they had no duty of care to Ormond, that in any event the assault against her was not foreseeable, and further that they had no control over Weinstein’s conduct outside of work with a non-employee.  Ormond alleges that the companies had a duty to protect her from Weinstein, and that the companies had enough information about his prior bad acts to be on notice that he might engage in criminal conduct and that they should have controlled him and warned her.  Ormond may not have felt given her profession and the power Weinstein had at the time that she could ignore him after workhours. In other words, she felt compelled to attend or her career would be over.

Harvey Weinstein is currently serving prison time for his activities against women.

The Judge denied the dismissal and is allowing the case to continue to discovery.  The companies appealed.

Generally, a party must show that the defendant knew or should have known of a propensity for the employee to engage in such conduct and the conduct must have occurred on the employer’s premises or in connection with employment activities.  For the most part, it is difficult to bring a lawsuit against an employer for the off-duty actions of an employee during nonbusiness time.

If Ormond wins, at least in New York, these types of cases may be more common.  If it is considered a quid-pro-quo type case, it will be a difficult case to defend with punitive damages.  Michigan tends to be a more friendly employer state, but it does not mean that these cases will not be filed.  In Michigan, an employer can be held liable for sexual harassment committed by a non-employee under certain circumstances. Plaintiff attorneys are looking for deep pockets for actions an employer should have known or knew that an employee may take when dealing with a nonemployee off hours.

Therefore, HR needs to ensure the following to minimize liability:

1. Ensure clear policies and procedures are in place to address sexual harassment not only of employees but non-employees as well;
2. Provide training to employees on how to recognize and report harassment and provide nonemployees who work with the employer knowledge of employer’s process and procedures in case it occurs to them;
3. Provide all managers with training as to their responsibilities both on and off the clock with employees or non-employees who work with the employer, especially of various scenarios concerning coworkers, customers, clients, and vendors with whom employees interact as part of their work duties; and
4. Take immediate action to investigate and address any complaints of harassment, regardless of the offender’s relationship with the employer.

However, the Federal Court of Appeals for the 6^th Circuit, which includes Michigan, laid out a new, stricter standard for employers, overturning the EEOC standard which Weinstein was found liable.  In Bivens v. Zep, Inc., No. 24-2109 (U.S. 6th Circuit Court of Appeals, 8/8/25), the court found that employers are liable if they wanted the harassment to happen or were "substantially certain" that it would flow from their actions. In the situation before the court, Dorothy Bivens, a former sales representative for manufacturing company Zep Inc., alleged the company didn't do enough to shield her from the unwanted advances of a male motel management client. The lawsuit was filed in 2023.  For example, on a site visit in 2021, Bivens said, the client locked her in his office and repeatedly asked her to date him. 

If this case goes to the Supreme Court, it is unclear whether the 6^th Circuit’s standard will be upheld. 

Regardless, failure to properly address sexual harassment, whether it is committed by an employee or a non-employee, can expose the employer to legal liability.  If the employee has a history of poor behavior, it is the victim’s perspective, not the employer’s perspective, that governs the cause of action, and nonemployees should not be put in a situation where the poor behavior is prevalent whether on or off duty.

Sources: Law360 8/11/25, Littler 3/14/25, BBC 10/4/23