SEXUALLY EXPLICIT LANGUAGE USED BY WRITERS ON THE "FRIENDS" TELEVISION SHOW WAS NOT SEXUAL HARASSMENT

The California Supreme Court recently held that the use of sexually coarse and vulgar language in the workplace does not necessarily constitute sexual harassment under the California Fair Employment and Housing Act ("FEHA").

In Lyle v. Warner Brothers Television Productions, 38 Cal.4th 264 (2006), the plaintiff sued for sexual harassment after having spent four months working as an assistant to the comedy writers of the television show Friends. Before she took the job, Lyle had been warned that the show dealt with sexual matters, and that as an assistant to the writers she would be required to listen to the writers' sexual jokes and discussions about sex, take notes about what she heard, and transcribe those notes for use as possible scripts or ideas for scripts.

In her lawsuit, Lyle claimed that she was harassed by the sexually explicit comments she heard. For example, Lyle was present when the writers talked about such topics as anal sex, oral sex, and masturbation. She also heard the writers talk about what they would like to do to female cast members on Friends, and she described a book, maintained by one of the writers, depicting female cheerleaders in a sexually provocative manner. Lyle admitted, however, that none of these comments and actions was directed toward her.

Was it sexual harassment or just part of the "creative process?"

The defendants did not deny that the writers used sexually coarse and vulgar language at work, both before and after Lyle was hired. Instead, the defendants argued that the writers' discussions were intended to generate material for the show, and that both male and female writers participated in the sexually explicit conversations. The defendants further noted that the comments were never about or directed at plaintiff. The writers' discussions, they argued, were merely part of the creative process of writing for a television show that often featured sexual situations and language.

Supreme Court says it was not sexual harassment.

The Supreme Court held that the defendants were entitled to summary judgment on the plaintiff's sexual harassment claim. The Supreme Court ruled that no reasonable trier of fact could conclude that the writers' conduct constituted harassment of the plaintiff because of her sex within the meaning of FEHA.

The Supreme Court explained that in order to establish a claim of sexual harassment, the plaintiff has to show that she was subjected to sexual advances, comments, or other conduct that was (1) unwelcome, (2) because of sex, and (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. According to the Court, Lyle's claim failed because she could not establish that the conduct at issue was neither "because of" her sex, nor was it sufficiently severe or pervasive.

The conduct was not because of Lyle's sex.

In reaching the conclusion that the conduct was not "because of" Lyle's sex, the Court relied on the undisputed facts that (1) the sexual discussions and other antics by the writers did not involve and were not aimed at Lyle, (2) such "non-directed" conduct was undertaken in group sessions with both male and female participants present, and (3) women writers on the Friends production also discussed their own sexual experiences to generate material for the show.

And the conduct also was not sufficiently severe or pervasive.

The fact that the writers' discussions were not directed at Lyle weighed heavily in the Court's conclusion that the writers' conduct was not sufficiently severe or pervasive. On that point, the Supreme Court reaffirmed that when assessing whether particular conduct is sufficiently severe or pervasive to constitute actionable harassment, courts must consider all of the circumstances in each case, applying both "common sense" and "an appropriate sensibility to social context." In Lyle's case, the Court reasoned, since the derogatory comments did not even involve her, she was obligated to show that the conduct "permeated" her direct workplace environment and was "pervasive and destructive," which was a burden she could not meet.

How does the Lyle decision benefit California employers?

The Lyle case reaffirms that the laws against sexual harassment are not "civility codes," and that liability for sexual harassment will only be imposed where the plaintiff can show that she (or he) was subjected to conduct that was (1) unwelcome, (2) because of sex, and (3) sufficiently severe or pervasive to create an abusive working environment.

So, does Lyle mean that employers should tolerate sexually explicit, coarse, or vulgar language?

Of course not! Lyle and other cases make it clear that all of the facts and circumstances of each case must be considered before one can say whether specific words or specific conduct is or is not sexual harassment. For employers, this means that the same words or conduct that are not sexual harassment in one case are, or could be, sexual harassment in another case. So, the Lyle decision definitely should not be interpreted to mean that the use of sexually coarse and vulgar language in the workplace could never constitute harassment because of sex.

How can employers minimize claims of sexual harassment?

Employers can minimize or avoid such sexual harassment claims by maintaining clear policies that explain the types of conduct that could constitute harassment, and that provide a mechanism for those who witness such conduct or who believe they are being harassed to report it. Effective anti-harassment policies and procedures should contain all of the following elements:

• A definition of harassment, with examples.
• A statement that the employer will not tolerate any harassing conduct.
• procedure for those who witness harassing conduct or who believe they are being harassed to report.
• Prompt investigation of all reports.
• A guarantee that those who report suspected harassment will not be retaliated against.
• Effective remedial action against anyone who is found to have violated the policy.