Are "Friends" Writers "Required" To Engage in Sexual Banter, Even If the Effect Is Harassing?
A Ruling in a California Court Allows the Argument to Be Made

As the sun sets this week on "Friends," NBC's long-running hit sitcom, the writers, producers and network remain embroiled in litigation.

The case of Lyle v. Warner Brothers Television Productions has just been sent back to the lower court. At trial, a judge and jury will determine whether the writers' crude sexual remarks and gestures created a hostile environment for a female assistant.

For four months, Lyle worked primarily for Adam Chase and Gregory Malins, two of the show's writers, and a supervising producer, Andrew Reich. She was then fired, allegedly because she did not type fast enough to keep with the creative discussions. As a result, the defendants argued, important jokes and dialogue were missing from her notes.

After being fired, Lyle sued in California state court, bringing claims under California's anti-discrimination law. She alleged that she had been subjected to a variety of illegal actions: race discrimination, sexual harassment, retaliation, and wrongful termination. (California's law with respect to these actions is similar, but not identical, to federal anti-discrimination law.)

The trial court granted the defendants summary judgment on all counts, ordered her to pay costs, and, quite surprisingly, ordered her to pay the defendants' whopping legal fees (amounting to $415,800), on the theory that her anti-discrimination claims were frivolous and without foundation. (Civil rights plaintiffs who prevail are often awarded attorneys' fees as part of the judgment; but they are almost never required to pay the other sides' fees if they lose.)

Lyle appealed both the dismissal of her claims and the award of attorneys' fees. The appellate court reversed the fee award, and resurrected one of her claims for trial: sexual harassment.

Lyle's claim of harassment is this: she was subjected to a constant barrage of sexual talk, jokes, drawings, and gestures that demeaned and degraded women by the show's writers during their "creative" meetings. Some of her allegations--even paraphrased, as many of them are here--are quite striking.

The alleged comments Lyle lists in her complaint revolve around certain themes. One theme is banter about the actresses on "Friends": discussion of which ones the writers would like to have sex with and, if they did, different sexual acts the writers would like to try; speculation about with which "Friends" actresses the writers had missed opportunities to have sex; speculation about the supposed infertility of one of the "Friends" actresses; its supposed cause (her "dried up pussy"); and speculation about the sexual activities of the "Friends" actresses with their partners. She also complains of derogatory words used to describe women.

Another theme of the alleged comments was the personal sexual preferences and experiences of the writers, emphasizing anal sex, oral sex, big breasts, young girls and cheerleaders.

Then there were the drawings: cheerleaders with exposed breasts and vaginas; "dirty" coloring books; and penned alterations to ordinary words on the script to make "happiness" say "penis" or to make "persistence" say "pert tits".

Finally, the sexual gestures cited in Lyle's complaint include: pantomiming male masturbation and banging under the desk to make it sound like someone masturbating.

The defendants admitted that many of Lyle's allegations were true. They testified in deposition that they did many of the things she complained of, but argued that the conduct was justified by "creative necessity."

The writers' job, defendants argued, was to come up with story lines, dialogue, and jokes for a sitcom with adult sexual themes. To do this, they needed to have "frank sexual discussions and tell colorful jokes and stories (and even make expressive gestures) as part of the creative process."

Could this kind of "creative necessity" defense succeed? Certain, this kind of defense is not well-established. But the consideration of "context" has always been permissible in determining the existence of a hostile environment.

Here, the writers -- and the lawyers who presumably prepped them -- seem to be suggesting that in the creative context, anything goes. Thus, they argue, what might count as harassment in, say, a law firm, is just creative, and therefore acceptable, in a TV writing room.

This argument raises an important question: What does context mean, when it comes to sexual harassment claims? And to what extent can "context" provide an excuse for what otherwise would plainly be harassing behavior?

First, what has the Supreme Court said about "context"? In its 1998 decision in Oncale v. Sundowner Offshore Services, Inc., the Supreme Court stated that a court applying Title VII should give "careful consideration of the social context in which particular behavior occurs and is experienced by its target" when determining whether an objectively hostile environment existed.

For example, Justice Scalia noted in his majority opinion, context is what differentiates a coach's slapping a football player on the behind after a game, from his doing the same thing to his secretary back at the office. Context might justify the former behavior, but not the latter.

But federal courts have struggled with the concept of "context," sometimes running amok with it. The U.S. Court of Appeals for the Tenth Circuit, for example, held in 1995 in Gross v. Burggraf Construction Co. that a female truck driver could not prevail in her hostile environment claim because of context. The court opined that in "the real world of construction work, profanity and vulgarity are not perceived as hostile or abusive. Indelicate forms of expression are accepted or endured as normal human behavior."

Obviously, there is a problem with this logic, however. One might rewrite the court's comment, more accurately, this way: In the real world of construction work, profanity and vulgarity are not perceived as hostile or abusive by many male, and some female, construction workers. Indelicate forms of expression are accepted, or endured as normal human behavior by many male, and some female, construction workers.

This more accurate rewriting reveals the problem: Does the ability of some women to endure harassment as a cost of working, mean other women cannot sue? And what was the basis for the appeals courts claim that female construction workers endure harassment "as normal human behavior" -- rather than enduring it because though they hate it, they need the paycheck and don't wish to aggravate the hammer-carrying men they work with?

Put more formally, it's plain that permitting environments that have traditionally been dominated by men, and hostile to women, to remain so utterly frustrates the goals of anti-discrimination law -- which is to make that very kind of environment less hostile to women, or ideally, equally welcoming of women and men.

Fortunately, other circuits have rejected the Tenth Circuit's so-called "blue collar" exception and applied the same standards regardless of the workplace context. And history has evolved away from the Tenth Circuit's point of view.

Early on in the history of sexual harassment law, context was routinely urged as a justification for hostile environment harassment in many blue collar environments. One 1984 case, Rabidue v. Osceola Refining Co., was thrown out because the Michigan federal district court concluded that "Title VII was not meant" to change an environment in which "sexual jokes, sexual conversations and girlie magazines may abound."

But most courts today recognize such a justification cannot fly. Work environments have to be transformed, in some cases, to accommodate gender integration. Traditionally male work environments cannot be exempted from contemporary standards of equality -- indeed, these are the very environments in which such standards must be most rigorously enforced.

Unable to count on "strength in numbers" to protect themselves, lone women should be able to rely, at least, on the strength of the law. Persistent occupational segregation by gender continues to be the greatest source of inequality for working women.

Returning to the "Friends" case, however, it's fair to admit that the argument about context in Lyle is more compelling than in the blue-collar cases. Here, the argument is that context actually required sex talk, not simply that it was commonplace.

The defendants term this claim "creative necessity" and insist that it justifies their behavior. The idea is that it's part of their writing work to talk about sex. In contrast, sex talk plays no part in the actual work of construction: One need not tell a dirty joke to hoist a beam.

But in the "Friends" case, the defendants say they were actually "required" to have sexually explicit conversations in order to generate story ideas for the show. The appellate court, though it reversed the defendant's trial court victory, agreed that such an argument could be pursued.

The court analogized this "creative necessity" to the "business necessity" defense available in disparate impact cases. In those cases, an employer who relies on some criteria that disadvantage women, for example, can justify the practice by proving business necessity--that is, by proving that no less disadvantageous method would meet the employer's business needs.

So, for example, an employer might be able to use a fitness test that disproportionately eliminates female applicants, if it can show that the skill being tested is necessary for the job--for instance, a strength test for a job that involved lifting 50-lb bags of cement might be a legitimate job requirement.

Assuming this defense is viable in the sexual harassment context (which is not at all obvious), the question still remains: Was this conduct truly "necessary" to the writers' job?

It's not clear how a judge or jury would make that determination in any meaningful way.

On one hand, maybe the episode in which Rachel seduces a slow-to-make-a-pass co-worker by dressing up as a cheerleader arose out of the many lewd drawings of naked cheerleaders, and the writers' own fantasies about having sex with them.

On the other hand, there is no episode in which any explicit sexual act is shown, and none in which anal sex is even mentioned. (It's also hard to imagine anal sex ever could have been mentioned, given that "Friends" is a network show.)

On the whole, it's hard to imagine the "necessity" of writers' having detailed conversations about anal sex; talking about which of the "Friends" actresses might have sex with them; or listing the anatomical shapes they find most appealing personally.

After all, "Friends" is not a hard-core porn show. To the contrary, the sexual humor relies mostly on innuendo and euphemistic references.

Telling the show's writers that they could not talk about sex would certainly inhibit their ability to invent and draft scripts. But giving them carte blanche to say, draw, and do anything -- no matter how offensive or degrading to women -- runs the risk of creating an environment in which, potentially, no woman would want to work.

Interestingly, "Sex and the City" -- which has prominent female writers -- might not create the same kind of hostile environment, however. When women are a large part of the discussion and free to speak their minds -- not grossly outnumbered, or simply taking down male writers' slurs (as Lyle was) -- the context may be very different.

One also wonders about the climate for the "Friends" actresses, especially if any of these comments ever got back to them. Of course, it's hard to see stars with huge paychecks as victims. But shouldn't a star be able to count on a collegial relationship with the writer -- not one in which she is demeaned, objectified, and mocked during writing sessions? Shouldn't she be entitled to enough respect that her infertility isn't mocked in the crudest way?

Traditionally, men have dominated the field of TV sitcom writing and female writers have complained about the difficulty of breaking into the field. Applying a more lenient standard for sexual harassment to comedy writers could well mean that women will continue to feel out of place in the environment.

It seems probable that female writers are sometimes not hired in order to maintain the prevalent "men's club" atmosphere in the writing room. Or, in some cases, a single female writer may be hired, but only as a token, to provide a "female" perspective, to write for the female characters, or to write for "female" shows like "Murphy Brown" or "Designing Women." The stereotype that "women aren't funny" is pervasive -- and it will take many Tina Feys to break it down.

Inevitably, there will someday be a high-profile suit sex discrimination or sexual harassment suit by a talented female comedy writer who is not hired -- or mistreated, or fired -- that will send shock waves through Hollywood, and potentially lead to a large verdict.

If the "creative necessity" defense is too broad, such a suit may be unsuccessful despite the reality of the discrimination it would seek to address and correct.