When the inevitable reunion episode of the popular Friends television series heads toward production, the writers will be able to use “sexually coarse and vulgar language and conduct, including the recounting of their own sexual experiences,” in the workplace without much fear of being successfully sued by other employees exposed to their antics. This is thanks to an April 20, 2006 unanimous decision by the California Supreme Court holding that sometimes vulgarity is not just acceptable in the workplace, but necessary. Lyle v. Warner Brothers Television Productions (2006) __ Cal 4th__, 42 Cal.Rptr.3d 2. Although the workplace at issue in Friends was not typical, the ruling has significant implications for employees and sexual harassment claims based on a hostile work environment theory generally.
Amaani Lyle was hired as a writers’ assistant on Friends and given the task of typing accounts of the free-wheeling sessions that led to scripts for the top rated TV series. After four months, Lyle was terminated because of “problems with her typing and transcription.” Lyle countered with a lawsuit alleging a panoply of wrongful termination offenses. According to the Supreme Court, these included, “causes of action under the Fair Employment and Housing Act (FEHA) for race and gender discrimination, racial and sexual harassment, and retaliation for opposing race 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.”
Among her other complaints, Lyle contended that “the writers’ use of sexually coarse and vulgar language and conduct, including the recounting of their own sexual experiences, constituted harassment based on sex.”
The trial court threw the entire complaint out on summary judgment and awarded the defendants $415,800 in attorneys fees, finding the case to be “frivolous, unreasonable and without foundation.” Frivolous or not, the Court of Appeal reversed the trial court and ruled that Lyle was entitled to a trial on the FEHA causes of action for sexual and racial harassment, but not her other claims. The California Supreme Court granted review on the issues of “(1) Can the use of sexually coarse and vulgar language in the workplace constitute harassment based on sex within the meaning of the FEHA? and (2) Does the imposition of liability under the FEHA for sexual harassment based on such speech infringe on defendants’ rights of free speech under the First Amendment to the federal Constitution or the state Constitution?”
The California Supreme Court Decision and its Ramifications
The Court’s opinion, somewhat unusual in its repeated verbatim recounting of profanity, dismissed Lyle’s case on grounds that are both (1) specific to the creative process and (2) applicable across the board to all employers. Quoting a United States Supreme Court case, the court held that all verbal or physical harassment in the workplace is not actionable, but only when it amounts to “discrimination because of sex.” Consequently, the Court concluded that “workplace harassment, even harassment between men and women, is not automatically discrimination because of sex merely because the words used have sexual content or connotations. Rather, the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. This means a plaintiff in a sexual harassment suit must show the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.”
In disposing of Lyle’s claims, the Court made distinctions that are generally helpful to employers. Lyle was not the target of any of the remarks and only belatedly offered weak evidence that women in general were targeted with derogatory comments. The comments occurred in sessions where both men and women participated. The Court ruled that although the conduct was “tinged with ‘sexual content’ and sexual ‘connotations,’ no reasonable jury could find that members of one sex were exposed to disadvantageous terms or conditions of employment to which members of the other sex were not exposed or that if plaintiff had been a man she would not have been treated in the same manner.” Although sexually critical remarks were directed at two actresses, they were still “non-directed” as far as Lyle was concerned and she failed to establish enough of a case that the conduct “permeated” her direct workplace environment and was “pervasive and destructive” to even reach a jury.
More significantly, the Court ruled that the nature of the behavior and remarks had to be viewed in the context of the type of workplace. To the extent that some of the antics could not be seen as part of the creative process, they were not severe or pervasive enough to be actionable. The defendants successfully contended that their conduct was part of the creative process that led to the scripts for Friends, and that, “both before and after plaintiff was hired, sexually coarse and vulgar language was used in the writers’ room in group sessions with both male and female participants present, and both male and female writers discussed their own sexual experiences to generate material for the show [which] featured sexual and anatomical language, innuendo, wordplay, and physical gestures to convey humor concerning sex …”,
Under this ruling, more latitude is going to be provided in a hostile work environment that involves formulation of ideas or work product, and less in an environment such as a factory where the tasks are more manual and less intellectual.
The fact that Lyle had been warned that sexual jokes and comments would be part of the environment also was a factor in the Court’s ruling. This indicates that an employer who believes that some questionable behavior might occur should have a potential employee sign an acknowledgement that they understand the situation and agree to it.
In its conclusion, the Court warned that the decision was not meant as carte blanche for off-color workplace behavior. “In reaching this conclusion, we do not suggest the use of sexually coarse and vulgar language in the workplace can never constitute harassment because of sex; indeed, language similar to that at issue here might well establish actionable harassment depending on the circumstances. Nor do we imply that employees generally should be free, without employer restriction, to engage in sexually coarse and vulgar language or conduct at the workplace. We simply recognize that, like Title VII, the FEHA is not a “civility code” and is not designed to rid the workplace of vulgarity.”
Concurring Justice Ming Chin would have rested the decision on the Constitutional right of free speech and would not even have reached the FEHA issues. The majority acknowledged the Constitutional issue, but though it more appropriate to rely on the statute.