Offensive talk part of creative process, not harassment

By Allen Smith May 1, 2006
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As the language vacillated between the crude and obscene at writers’ meetings for one of America’s most popular sitcoms of all time, at least one employee wasn’t amused. Amaani Lyle, a comedy writers’ assistant, sued three male writers of “Friends” and Warner Brothers Television Productions after her termination, claiming that vulgar language and conduct constituted harassment based on gender.

In an April 20 opinion, the California Supreme Court rejected her claim because the coarse language was not specifically directed against her and was used in a creative workplace focused on producing scripts for an adult-oriented comedy with sexual themes.

The decision nevertheless has implications far beyond the circumstances of a T.V. show about “six beautiful people who could not possibly afford the apartments in which they lived,” said Michael Cohen, an attorney with Wolf, Block, Schorr and Solis-Cohen LLP in Philadelphia, in an April 28 interview.

Unscripted meetings offended assistant

When Lyle applied to be a writers’ assistant for “Friends,” two of the three male writers she ended up suing told her during the interview that the show dealt with sexual matters and that the writers consequently told sexual jokes and engaged in discussions about sex. Lyle said that sexual discussions and jokes did not make her uncomfortable and was hired.

After starting the job, Lyle was taken aback by the number of offensive discussions at writers’ meetings. Writers shared stories about their sexual experiences, described obscene fantasies involving two of the show’s actresses, drew lewd pictures during meetings, made masturbatory gestures, altered scripts by penciling in obscenities and used gender-related epithets.

Lyle did not object to anyone about the language and conduct, saying she was too mortified and offended by the comments and conduct to speak about them. She thought the writers had “sorely understated the actual climate” of the writers’ room in her interview and found their conduct to be distressing and annoying.

The writers’ room was “like being in a junior high locker room,” she testified, describing the writers as “silly little boys” who engaged in “very juvenile, counterproductive behavior.” Lyle did not claim that anyone subjected her to unwelcome sexual advances as a condition of employment.

Prohibited sexual harassment may include verbal, physical and visual harassment, as well as unwanted sexual advances, the California Supreme Court noted.

Verbal harassment may include epithets, derogatory comments or slurs on the basis of gender. Visual harassment may include derogatory posters, cartoons or drawings on the basis of gender.

Lyle’s allegations did not rise to the level of hostile workplace environment sexual harassment, according to the state supreme court. In group writing sessions, both male and female writers discussed their sexual experiences to generate material for the show, the court noted. In general, women and men were not treated differently, as lewd comments about both men and women were made.

The fantasies that the male writers shared about the actresses, as well as a few demeaning comments about them, did create an inference that some women on the production of “Friends” were targeted for personal insult because of their gender, while the men working there were not, the court observed. However, the actresses were not present to hear the writers’ offensive remarks and apparently had no awareness of what had been said, it added.

Because the derogatory comments were not directed at her, Lyle had to show that the conduct permeated her direct workplace environment and was “pervasive and destructive” to show harassment. The court concluded she failed to meet this threshold.

Free speech

In a concurring opinion, Associate Justice Ming W. Chin agreed with the court’s ruling, saying that “any other result would violate free speech rights under the First Amendment” because the writers were engaged in the creative process of writing adult comedy when the alleged harassing conduct occurred.

Chin stated that “a potential, and sometimes real, tension between free speech and anti-harassment laws exists even in the ordinary workplace.” Whether free speech or anti-harassment laws should prevail depends to a large extent on the context of the speech.

He gave two hypotheticals of workplace situations involving the display of centerfolds: a shipyard where only one woman is employed as a welder and a museum where centerfolds are displayed to document changes in American visions of female beauty.

Free speech rights yield to anti-harassment law in the first example, but not the second. Chin compared Lyle’s claim with the second example.

“The writers here did at times go to extremes in the creative process,” Chin commented. “They pushed the limits—hard. Some of what they did might be incomprehensible to people unfamiliar with the creative process. But that is what creative people sometimes have to do.”

A ruling for employers

By contrast, the court’s majority opinion did not address the question of whether liability for harassment would infringe on federal and state constitutional rights of free speech after it concluded that Lyle failed to show sexual harassment. However, the court cautioned that “language similar to that at issue here might well establish actionable harassment depending on the circumstances. Nor do we imply that employees generally should be free, without employer restriction, to engage in sexually coarse and vulgar language or conduct at the workplace.”

The employer-friendly ruling by the often employer-unfriendly California Supreme Court suggests that advance notice about conduct that might be viewed by some as inappropriate may carry some weight with courts, Cohen noted, although he said he has long thought such notices wouldn’t pass muster because “inappropriate conduct is inappropriate” regardless.

The decision also signals that prohibitions on sexual harassment “are not designed to protect the hypersensitive employee,” Cohen remarked. Nor are EEO laws intended to stifle brainstorming that is part and parcel with many creative jobs, not just those in Hollywood, but in work settings as various as publishers of magazines that deal with sex or relationships, graphic art departments and commercial marketing, he added.

However, “as soon as the conversation goes from business to the personal, that’s where you run a severe risk,” Cohen cautioned.

(Lyle v. Warner Brothers Television Productions, S125171 (Cal. 2006)).

Allen Smith, J.D., is senior legal editor for HR News.

For developments in other states, visit State Workplace Law Resources on SHRM Online.

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