The California Supreme Court Lets TV Comedy Writers Off the Hook for Sexual Harassment This Time, but Their Protection is Not Absolute
By JOANNA GROSSMAN
|Tuesday, May. 02, 2006|
The long-running comedy series "Friends" may have gone off the air two years ago, but the much-watched sexual harassment litigation it aroused has only just ended.
The case, Lyle v. Warner Brothers Television Productions, pitted a writer's assistant against the show's writers -- who, she claimed, engaged in a course of illegal sexual harassment. (She had also alleged racial harassment, a claim that has not yet been ruled on.)
Last week, the California Supreme Court ruled 7-0 in favor of the sitcom writers. Crucially, however, the court did not insulate "creative workplaces" from harassment claims in general, as the defendants had argued it should.
The Lawsuit: Was the Writers' Room a "Hostile Environment"?
Amaani Lyle claimed that while at work she was subjected by the show's writers to a constant barrage of sexual talk, jokes, drawings, and gestures that demeaned and degraded women. (I've described her allegations, many of which were undisputed, in greater detail in a previous column.)
She claimed that the writers' conduct created a hostile work environment, in violation of California's Fair Employment and Housing Act (FEHA). FEHA provides protections analogous to those under Title VII, the main federal antidiscrimination law, which prohibits sex discrimination including sexual harassment.
The trial court granted summary judgment to the defendants and, in a very unusual ruling, ordered the plaintiff to pay costs and attorneys' fees (in excess of $400,000!) to the defendants because it found her claim to be frivolous.
However, the intermediate appellate court reversed the attorney's fees award, ruling that her claim was not frivolous. Indeed, that court felt the claim presented questions that should be resolved by a jury, and would have sent the case to trial.
But the defendants appealed, and the California Supreme Court ruled in their favor on the merits. It affirmed the trial court's original grant of summary judgment, and thus, in effect, put an end to the sexual harassment component of the plaintiff's lawsuit.
The Plaintiff Loses, But No New Legal Ground is Laid
This case has been closely watched by many constituencies. Those in the entertainment world worried that a victory for the plaintiff could cripple the comedy writing business by forcing writers to censor their thoughts and expressions in order to comply with anti-discrimination mandates. The freedom to say literally anything - including things that might shock outsiders -- is, they claim, central to the creative process.
Civil rights advocates and some feminists worried about the opposite problem - they felt that a ruling for defendants might serve as a license to harass women with impunity within the comedy writing industry. Already numerically dominated by men, and by many accounts hostile to women, the industry would then be permitted to be inhospitable without limit.
Neither of these things happened. The decision in Lyle is decidedly middle-of-the-road, and amounts to little more than one application of well-established principles of harassment law. This particular plaintiff has lost, but others in similar cases may fare better. This decision is neither a license to harass, nor a requirement to censor.
The Basic Principles of Sexual Harassment Law and Their Application to This Case
The crux of this case involved the sexually coarse and vulgar language that all parties admit was used regularly in the writers' room at "Friends." Did it constitute illegal harassment? That depends, under existing harassment law principles, on whether it was "because of sex" and, if it was, whether it was sufficiently severe or pervasive to create an actionable or hostile work environment.
In order to run afoul of FEHA (or Title VII, for that matter), conduct must occur "because of sex." That requirement is what separates behavior that is discriminatory from behavior that is merely uncivil, unpleasant, or just plain gross.
Although courts sometimes fail to make the distinction, conduct that is sexual in nature is not necessarily "because of sex". To be actionable, the conduct must create an environment that is disadvantageous to members of one sex (read: gender) over the other. That standard can be met when the conduct is motivated by sexual desire and, thus, targeted primarily or exclusively at members of one sex. It can also be met when the conduct is borne of animosity or hostility to the presence of one sex in the workplace, or when it obviously targets members of one sex. The use of sex-specific and derogatory epithets can be proof of such hostility or motivation.
According to the court's explication of these principles, a plaintiff must show that the sexual conduct was directed either toward her specifically, or toward women in general. It is not sufficient to simply point to the use of sexually charged or inappropriate language.
The Plaintiff's Claim: Conduct Directed Not to Her, But to Women in General
The plaintiff conceded in her deposition that she had not been subjected to sexual advances, requests for sexual favors, threatening behavior, or sexual touching. Nor had any of the writers made sexually offensive comments directly to her.
Thus, the claim turned on her ability to prove that the writers' conduct demonstrated or created hostility to women in general.
When conduct is not directed at the plaintiff in particular, the court ruled, it must be severe or pervasive in order to be actionable. It must also take place in the plaintiff's immediate work environment and be witnessed by the plaintiff in order for it to create a hostile environment for her. (Sexual harassment law has long been interpreted to require that an environment be both objectively -- to a reasonable person -- and subjectively -- to the plaintiff specifically -- hostile.) Moreover, the court held that undirected conduct must be more severe or more pervasive than directed conduct in order to be actionable. So Lyle not only had to prove that she found the environment to be subjectively hostile, but also that it happened with extreme regularity.
Did the writers' conduct create a disadvantageous environment for women in general? The court found it was "neither surprising nor unreasonable from a creative standpoint" that the writers engaged in "discussions of personal sexual experiences and preferences and used physical gesturing while brainstorming and generating script ideas."
The court noted that Lyle herself did not clearly object to the conduct about which she later sued. She described it variously as "silly," "juvenile," and "like being in a junior high locker room". This reaction, the court concluded, was not a clear indication that she subjectively perceived the environment as hostile.
Nor was the environment, according to the court, obviously hostile or destructive to female employees in general. To the contrary, the court noted that both sexes contributed to, and were exposed to, the creative process - with all its sexually charged components.
Only one allegation, according to the court, suggested that women might be singled out for derogation or ridicule. Lyle had alleged that the writers made comments about wanting to have sex with some of the female actresses on Friends, and about the claimed infertility of one female cast member. (The actual comments were quite explicit and crude.)
But, the court found, these comments were neither severe nor pervasive. The comments themselves, while offensive, did not involve threats of assault or physical harm and were not made in the presence of the targeted actresses. Nor were they pervasive, apparently, since the plaintiff mentioned only a few occasions on which such statements were made. (Verbal harassment is almost never considered severe and, therefore, must be pervasive in order to be actionable.)
Plaintiff did also allege, in a later pleading, that the writers used gender-related epithets - too indelicate to be repeated here -- when referring to or describing women. While such epithets can be sufficient to create a hostile environment, the court found that they were not regular or pervasive enough to do so here.
The court thus rejected Lyle's claim, holding that no reasonable trier of fact (the standard on summary judgment) could find that "the conduct of the three male writers was sufficiently severe or pervasive to create a hostile work environment."
Context was crucial to the court's decision, as it noted that the type of work and the job responsibilities of parties involved were all relevant considerations.
Harassment Law After Lyle
California sexual harassment law would appear to be essentially the same after Lyle as it was before. Thus, the Supreme Court's opinion is perhaps more interesting for what it did not do than for what it did.
The court did not rule that undirected sexual conduct can, by itself, create a hostile work environment. Such a ruling would have been an extension of existing law in favor of harassment plaintiffs and might have been hard to reconcile with the requirement that conduct must be discriminatory in nature.
After all, not all sex-related conduct disadvantages female employees. And suppressing sex-related conduct may well have had a chilling effect on the creative process, since the ability to create sexually-themed comedy clearly does require writers to talk about sex.
More generally, the perception that Title VII and its state analogs are simply anti-sex, as opposed to anti-discrimination, has been the subject of strident critiques in recent years. A ruling that sent every allegation of undirected sexual behavior to a jury would have given those critiques greater traction. (As it is, such critiques tend to overstate the law's supposed "anti-sex" stance: Its point is not to make a workplace free of flirting or free of relationships, but rather simply to make it free of the kind of repeated, unwanted, and aggressive sexual advances that few - if any -- of us think anyone should have to suffer as a condition of working.)
But the court also did not go to the opposite extreme. It did not create an exemption for so-called "creative workplaces," something it might have done on a First Amendment theory or a theory of business necessity. That would have been a marked extension of the law that, while letting Hollywood sleep better at night, would have undermined the ability of FEHA to eliminate genuinely discriminatory workplace behavior.
After all, some of what is said and done in creative workplaces does disadvantage women - individually or as a group. And the law needs to be flexible enough to permit liability when it happens.
The Bottom Line: Personally Directed Harassment Is Still Off-Limits in the Writers' Room
The bottom line for comedy writers: Harassment law still applies as fully in the writers' room as it would in a mine, warehouse, law firm, or securities brokerage.
That means that unwanted sexual advances, threatening behavior, and sexual touching are just as plainly off-limits there, as in other settings. And the line isn't drawn at groping; speech, too, can be harassment. Requests for sexual favors count. So do sexually offensive comments directed to particular women.
Here's a simple example: Jokes about women's anatomy, however ugly, fall easily within creative license. But comments directed to a colleague or underling about her particular anatomy fit squarely within the category of sexual harassment - even in the writers' room.
Such comments, as noted above, weren't at issue in the Lyle case. But a plaintiff who does suffer this kind of treatment may well prevail in her harassment lawsuit in the future. And now that comedy writers have been put on clear notice where the line is drawn, they may be more harshly penalized for crossing it.