The Tale of Two Cities, Part 1

Saturday, May 6, 2006 | 0

(Aka: sexual harassment cases, true stories!)

By Jamie Charter, M.S., CPDM

In the past several weeks, two sexual harassment lawsuits have received high profile media attention. The two cities in which these cases were filed are Hollywood and Fresno, California. In this two part article series, some perspectives and information will be provided on these two cases, in a continued effort to offer education and information on the subject of sexual harassment prevention. Sexual harassment continues to be one of the major workplace issues facing employers.

The first case in point is Lyle vs. Warner Bros. Television Productions. The plaintiff was Amaani Lyle, who had been employed for four months as a comedy writers assistant on "Friends". "Friends", according to the case determination, was described as a show which "revolved around a group of young, sexually active adults", featured adult-oriented sexual humor, and typically relied on sexual and anatomical language, innuendo, wordplay and physical gestures to convey its humor".

Ms. Lyle filed a suit for sexual harassment in 2002 against three male writers, stating that the use of vulgar language and discussion of a highly sexual content nature had continually offended her.

Before Ms. Lyle was hired, she was forewarned that the show dealt heavily with sexual matters. In her position as an assistant to the comedy writers, the material she would be transcribing would be sexual jokes and discussions, most likely to be utilized for scripts.

Ms. Lyle was fired after four months of employment, due to problems with her typing speed for transcribing minutes at meetings or failure to capture the flavor of the meetings in her notes.

This action was then filed as a harassment suit, with the DFEH as she believed the circumstances constituted harassment based on sex, within the meaning of the Fair Employment and Housing Act (the FEHA).

According to Justice Ming Chin, via a concurring opinion, it was stated: This case has very little to do with sexual harassment and very much to do with core First Amendment free speech rights."

The circumstances of this case have absolutely everything to do with the entertainment industry and what constitutes necessity for maximizing the "creative process".

In addition, according to the review of the case, it was stated "It is the disparate treatment of an employee based on sex -not the mere discussion of sex or vulgar language-that is the essence of a sexual harassment claim".

THE DECIDING FACTOR:

The courts granted review to address whether the use of sexually coarse and vulgar language in the workplace can constitute harassment based on sex within the meaning of the FEHA and, if so, whether the imposition of liability under the FEHA for speech of this nature would infringe on defendants" federal and state constitutional rights of free speech.

The courts determined that "no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA. They further concluded that no reasonable trier of fact could conclude the particular comments were severe enough or pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA.

The 7-0 ruling by the Justices sent a message of agreement with Warner Bros. Television Productions that trash talk was part of the creative process and, therefore, the studio and its writers could not be sued for raunchy writer's meetings.

An attorney for the California Employment Lawyers Association filed a brief in support of Ms. Lyle's suit and said the court should have let a jury decide whether the behavior constituted harassment. They stated "there was absolutely no evidence to link any of the conduct at issue with anything that occurred on the show".

Warner Bros. acknowledged that some of the sexually explicit talk took place that was vital to the show's chemistry. In addition, the justices noted that Ms. Lyle had been warned at the time of hire that explicit discussions were part of developing the sexually charged comedy, the show's foundation and theme.

Justice Marvin Baxter commented that no jury would believe the writer's assistant was the target of harassment during profanity-laced script sessions "for an adult-oriented comic show featuring sexual themes".

Justice Baxter also stated, "most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace".

Ms. Lyle also had acknowledged that none of the comments were directed at her and that she had been advised, when hired, that the writers would be joking about sex.

And, Ms. Lyle testified that, when told during the interview for the Friends position that the "humor cold get a little lowbrow in the writer's room." She responded she would have no problem because previously she had worked around writers and knew what to expect.

Ms. Lyle had also contended in her deposition that much of the writers' vulgar discussion and content wasted her time, there was no indication that conduct affected the work hours or duties of plaintiff and her male counterparts in a disparate manner.

Thus, while the conduct was certainly acknowledged as having been tinged with "sexual content" and sexual "connotations: a reasonable trier of fact could not find, based on the facts presented in the case, that "members of one sex were exposed to disadvantageous terms of conditions of employment to which members of the other sex were not exposed".

Since this was filed prior to the enactment of AB 1825, would the law having been in effect possibly produced a different outcome?

The right to sue letter was entertained by the Department of Fair Employment and Housing, filed by Ms. Lyle against organizations and individuals involved in the Friends show. Her first amended complaint alleged causes of action under the FEHA for race and gender discrimination against African-Americans in the casting of Friends episodes.

The complaint also alleged common law causes of action for wrongful termination in violation of the public policies against race and gender discrimination and retaliation for complaining about race discrimination in violation of the FEHA.

The case was thoroughly investigated and based upon the specific circumstances and facts, it was reviewed to determine whether the language at issue constituted harassment based on sex within the meaning of the FEHA and whether such language was severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to the plaintiff, Ms. Lyle, because of her sex.

The first task was to determine whether the facts presented in the summary judgment were sufficient to establish a prima facie case of sexual harassment under the appropriate legal standards.

In addition, actionable cause under the FEHA was not found because:

1) The use of sexual speech, standing alone, does not violate the FEHA's prohibition against harassment because of sex

2) The conduct did not amount to severe or pervasive conduct that that altered the terms or conditions of plaintiff's employment.

The conclusion and disposition is as follows: "defendants have shown that plaintiff has not established, and cannot reasonably expect to establish, a prima facie case of hostile workplace environment sexual harassment.

While a state appeals court ruled in 2004 that Ms. Lyle offered enough evidence to proceed to trial, the Supreme Court disagreed, saying there was no evidence that the writers' comments were directed at Lyle or at women in general, or that women were treated differently than men.

The court sidestepped the underlying, constitutional issue of whether comments and behavior exhibited during the "creative process" could be the basis of a lawsuit if they included harassment aimed at an individual or group of women or racial minorities.

Only Justice Chin addressed that issue, in his comments that such suits should be allowed only in rare cases where a plaintiff was targeted for incessant harassment. "The threat of litigation must not be permitted to stifle creativity".

WAS THIS CASE TRULY ABOUT SEXUAL HARASSMENT, WITH EFFECTS ON OTHER FUTURE CASES?

What set this case apart was the fact that it occurred in the entertainment industry. The entertainment, motion picture and communication industries and news organizations on one side and womens rights advocates on the other are closely watching this case. The reason for this is a potential conflict between free speech in the workplace oriented toward communication or artistic creativity and anti-harassment laws.

The justices ruled, however in a 7-0 ruling in which they expressed agreement with Warner Bros. Television Productions that trash talk was part of the creative process and, therefore, the studio and its writers could not be sued for raunchy writers' meetings.

The court added that the same dialogue and behavior might be illegal elsewhere, and, according to Justice Baxter, "language similar to that at issue might establish actionable harassment depending on the circumstances".

An attorney for Warner Bros. who argued the case before the justices in February, said, "the decision was a boon for Hollywood and other fields that thrive on creativity". "I think employers in the motion picture industry and other industries are going to breathe a collective sigh of relief".

The attorney expressed his opinion that "the courts made it clear that when speech is part of one's job, it cannot form the basis for a hostile work environment claim".

A Los Angeles employment law attorney speculated that a ruling in favor of the former assistant would have made it virtually impossible to produce TV programs or other creative works. "If your concern is with every statement or gesture, you could be subject to a lawsuit, that is going to inhibit the creative process".

An attorney with The Legal Aid Society Employment Law Center said the court kept the door open for harassment suits against communication businesses. The justices recognized that "there is no defense of creative necessity for sex harassment".

A spokesperson from the California Employment Lawyers Association, which represents employees, stated that the ruling was narrow but said the court failed to come to grips with the underlying problem of sex bias in Hollywood.

In addition, the allegations in the lawsuit, which the court found inadequate, were evidence of a "frat-boy" atmosphere, "not a warm environment for women".

The California Supreme Court, in their 7-0 ruling, put out a message that sometimes vulgarity was not just acceptable but necessary in the workplace. According to Justice Chin, "the allegedly offending conduct win this case arose out of the protected creative process and was not directed at plaintiff. Accordingly, the trial court properly granted summary judgment in defendant's favor".

And, according to Justice Chin, "This case had very little to do with sexual harassment and very much to do with core First Amendment free speech rights."

Lawsuits like this one, directed at restricting the creative process in a workplace whose very business is speech related, present a clear and present danger to fundamental free speech rights.

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