Can raunchy discussions of female anatomy and last night's sexual exploits be considered a routine part of the job? A recent California Supreme Court decision suggests they can. In a case that reads like a dirty novel, a former writer's assistant for the hit TV show "Friends" claimed conversations about sex acts and cheerleader fetishes were regular fare for her bosses.
At first blush, this kind of speech and behavior seems to be perfect fodder for a hostile work environment claim. But in its April ruling, the court said that a "creative workplace" in which a free flow of ideas--however crude--is essential to the job can be held to a different standard.
When Amaani Lyle was fired from her post in 2000 after just four months on the job, she filed wrongful termination and sexual harassment claims against her employer, Warner Bros. Television Production, NBC Studios, and the creators, producers and writers of the program, claiming the frequent sexual talk created a hostile work environment. The trial court dismissed the case, and awarded the defendants more than $400,000 in attorneys' fees. The Court of Appeals reversed in part and said Lyle's harassment claim could go to a jury.
The endnote in this six-year saga came April 20, when the California Supreme Court ruled unanimously in favor of the employer. The circumstances of this case--that Lyle worked for an "adult-themed" show, that she was warned in advance of the nature of the work environment and that none of the comments were directed to her specifically--all weighed heavily in the court's decision.
According to Michael Brewer, a shareholder in Littler Mendelson in Walnut Creek, Calif., this is encouraging news for in-house counsel. "This case shows that the court is willing to look at sexual harassment claims in context," he says.
Part of the context for this case, the defense argued, was that the "Friends" writers' room was a "creative workplace," in which unfettered speech was crucial to the writing process. The defendants weren't the only ones proffering this argument--the Writers Guild of America, Los Angeles Times Communications, Motion Picture Association of America, and The Regents of the University of California all asked the California Supreme Court to review the case.
"We feared that a decision to permit such cases to go to a jury would have a chilling effect not only in writers' rooms, but in other creative workplaces as well," says Adam Levin, partner at Mitchell Silberberg & Knupp in Los Angeles and counsel for Warner Bros.
Levin, who worked in-house at Warner Bros. when the plaintiff first filed the case, paints a bleak picture of what the landscape might look like had the court sided with Lyle.
Discussions of topics such as the abuse at Abu Ghraib prison and the Monica Lewinsky scandal, he says, would be barred from newsrooms. Professors who lectured on sexuality, hate speech and art history could do so only at considerable risk to themselves and their universities.
The California Supreme Court prevented such dilemmas by drawing a distinction between those work environments in which such vulgarities are unexpected and those in which they are an inherent part of the job."That the writers commonly engaged in discussions of personal sexual experiences while...generating script ideas...was neither surprising nor unreasonable from a creative standpoint," wrote Justice Marvin Baxter for the court.
In a concurring opinion, Justice Ming W. Chin went even further.
"Lawsuits like this one," Chin wrote, "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."
You Say Harassment...
Being deemed a "creative workplace," of course, does not exempt an employer from its responsibilities under state and federal harassment law. "The court didn't say, 'If you're in the entertainment industry, you get a free pass,'" Brewer says.
What it did say is that, regardless of work environment, plaintiffs must prove the elements of their claims. California's Fair Employment and Housing Act (FEHA) mimics Title VII of the federal Civil Rights Act of 1964. To prove harassment under either law, plaintiffs must show that they were subjected to sexual advances, conduct or speech that were unwelcome, "because of sex," offensive to a reasonable person, and severe or pervasive. An employee who, like Lyle, is not personally targeted with such comments or behavior must show that the conduct "permeated her direct work environment." The court found Lyle failed to meet these conditions.
For example, Lyle failed to show the comments were "because of sex." She claimed the writers were demeaning toward women in general. But both men and women contributed to and were exposed to the behavior at issue. This equal-opportunity crudeness led the court to conclude that "the defendant writers' nondirected sexual antics and sexual talk did not contribute to an environment in which women and men were treated disparately."
Employers engaged in creative endeavors breathed a collective sigh of relief at that holding. But just what constitutes a "creative workplace" is still vague at best, Brewer cautions.
"Most employers would be better off enforcing their sexual harassment policies than trying to position themselves as creative workplaces," he says.
Nonetheless, Levin encourages in-house counsel dealing with harassment suits to think beyond their traditional defenses. "The constitutional defense is one that should be given serious consideration," he says.
For those workplaces that truly can be considered "creative," Levin and Brewer recommend giving potential employees advance written notice of the nature of the work environment.
"While advance notice is not legally required," Levin says, "it may nevertheless prove to be very useful."