• What's a Little Profanity Among Friends?
  • May 15, 2006 | Author: Lauren J. Katunich
  • Law Firm: Ervin Cohen & Jessup LLP - Beverly Hills Office
  • In an opinion that could make the famed sex scholar Alfred Charles Kinsey blush, the California Supreme Court in Lyle v. Warner Bros. Tel. Prods., Cal. LEXIS 4719 (2006), has declared that lewd, off-color, or even blatantly explicit jokes in the workplace do not necessarily constitute sexual harassment under California's Fair Employment and Housing Act ("FEHA"). Rather, and as with most things in life, context is key.

    In Lyle, a female assistant to the writers on the wildly popular television series Friends filed suit against the show's producers and three male comedy writers, alleging that the writers' use of sexually coarse and vulgar language and conduct constituted harassment based on sex within the meaning of FEHA. The Friends series, which revolved around a group of six attractive and sexually active adults, often tackled adult-oriented sexual humor to appeal to its massive audience. In order to facilitate the creative process, the show's writers and staff relied heavily on exchanging their own personal, sexual "war stories." In the name of art and creativity, the male writers discussed personal sexual conquests and escapades, their love for young, buxom cheerleaders, and the need to, well, pleasure themselves.

    Despite the defendants' not-so-gentlemanly behavior during the script-writing process, the plaintiff admitted that none of the named defendants nor any other employee of the Friends production, ever said anything sexually offensive about her directly to her, nor had she ever been sexually propositioned or threatened physically. Plaintiff was terminated four months after her hire because of problems with her typing and transcription.

    The question presented to the Supreme Court was whether defendants' pervasive use of sexually coarse and vile language in the workplace was sufficient to expose defendants to liability for sexual harassment under FEHA and, if so, whether the imposition of liability under FEHA would infringe on defendants' constitutional rights of free speech (i.e., First Amendment). Ultimately, the court ruled that defendants' conduct was not a violation of FEHA, and thus the issue of free speech was not addressed in the majority opinion, though the concurring opinion allotted eight pages to it.

    The court's rationale in reaching its holding was two-fold. First, the court held that the use of sexual language, standing alone, does not violate FEHA's prohibition against harassment because of sex. Rather, a "plaintiff in a sexual harassment suit must show 'the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimina[tion] . . . because of . . . sex.'" Indeed, "[w]hile the FEHA prohibits harassing conduct that creates a work environment that is hostile or abusive on the basis of sex, it does not outlaw sexually coarse and vulgar language that merely offends."

    Moreover, the court reasoned, the conduct alleged by the plaintiff did not amount to severe or pervasive conduct that altered the terms or conditions of her employment. (Indeed, she brought the suit only after she was fired for performance reasons.) Whether an environment is abusive or hostile is determined by the totality of the circumstances, including frequency, severity, and, yes, sometimes the context in which the comments are made or the nature of the work environment. In those cases where the complaining employee is not a direct target of the harassing conduct (as was the case here), the burden of showing that the harassing conduct altered the terms of employment is even greater.

    In Lyle, there was absolutely no evidence that the vulgar language was directed at the plaintiff personally. perhaps more importantly, the conduct and language that was perceivably derogatory to women in general was a known part of the show's creative process which had been disclosed to the plaintiff at the time she was hired. For the court, "[t]hat the writers commonly engaged in discussions of personal sexual experiences and preferences and used physical gesturing while brainstorming and generating script ideas for this particular show was neither surprising nor unreasonable from a creative standpoint."

    In sum, while the Lyle decision is unlikely to be heralded as ground-breaking in the world of sexual harassment litigation, it does serve to reaffirm a very real cautionary tale: employers and employees alike must remember that context is key. Plaintiff knew at the time she applied for the job of the sexually charged nature of the environment in which she was to be working. Moreover, apart from the fact that the court was not totally convinced that plaintiff herself was utterly offended by the naughty banter between her co-workers, plaintiff herself admitted that the banter was not directed at her or meant to offend or denigrate her.

    Of course, if the crude conversations in Lyle had occurred in the vast majority of offices throughout the United States, a result similar to the holding in Lyle would be unlikely. Whether you agree or disagree, sometimes the "creative process" carries with it a badge of protection.

    Are You Prepared?

    A new feature of the Employment Law Reporter

    • You must promulgate and enforce a strongly worded written sexual harassment policy.
    • You must offer and require participation in periodic sexual harassment training.
    • You must document an employee's performance problems before the employee claims to be fired as a result of complaining about sexual harassment.
    • You must learn the difference between actionable sexual harassment and permissible exercise of First Amendment rights.