When Is Offensive Workplace Language, Conduct Part of Job?
Forum Column

By Richard S. Whitmore

On July 21, the state Supreme Court agreed to decide whether an assistant writer on the "Friends" television show was the victim of a hostile working environment. The plaintiff, Amaani Lyle, has alleged that she was subjected to verbal and visual sexual harassment by writers and producers of the television show.

A Superior Court had summarily dismissed her sexual-harassment suit against Warner Brothers. However, the Court of Appeal reinstated the action, finding that the question of "whether defendants created a hostile working environment" was for a jury to decide.

This litigation has generated vociferous public debate. The entertainment industry has argued strenuously that the offending conduct was a part of the creative process necessary for writers to develop story lines for the adult situation comedy. They assert that the success of "Friends" was due in part to adult themes which frequently dealt with sexual matters.

Further, the industry contends that the First Amendment rights of the writers would be violated if they could be sued for their admittedly off-color language and conduct that are part of the creative process.

On the other side of the debate, women's rights groups, discrimination lawyers and legal-aid advocates argue with equal fervor that dismissing Lyle's lawsuit would send a message that the state's Fair Employment and Housing Act does not apply in the entertainment industry. They contend that depriving Amaani Lyle of the right to recover damages for being subjected to crude language and vulgar conduct would constitute an implied condoning of such actions, thereby requiring women to face a demeaning, sexist and misogynistic workplace.

The heated public debate over Lyle v. Warner Brothers, 2004 DJDAR 8889 (Cal., grant of review July 21, 2004), has focused on the entertainment industry and the unique creative process involved in television writing. However, the possible consequences of a Supreme Court decision extend well beyond one industry.

Potentially, the decision could affect employers and employees throughout the state in both the public and private sectors. Depending on how the court addresses Lyle's allegations, that impact could require employers to restructure jobs, or it could deprive females of the right to complain about offensive conduct outside the scope of the jobs they were hired to perform.

Amaani Lyle was hired as an assistant writer by the producers-writers of the "Friends" television show in 1999. Previously, she had worked with writers for Nickelodeon. When hired for the "Friends" position, she was told that in her new job she would participate in writers' meetings where sexual matters were discussed.

Her job was to take notes and to identify the jokes and dialogue that the writers seemed to be suggesting for future story lines. One job requirement was to have expert typing skills. Lyle lasted only four months, dismissed ostensibly because she lacked the requisite typing speed to keep up with the writers' discussions.

Following her dismissal, Lyle sued for being subjected to a sexually hostile work environment. The Supreme Court, in its grant of review, describes the language and conduct she experienced as "sexually course and vulgar."

The Court of Appeal provides a substantially more detailed and graphic description of what the defendants said and did (much of which they admit). The language included crude descriptions of the female anatomy, comments about oral sex, vulgar drawings of female body parts, feigned acts of masturbation and multiple sexual references to the actors and actresses in the television series. None of the language or conduct was directed at Lyle. The sexual comments and activities occurred in the writers' meetings, in the hallways and in the break room.

Reported court decisions in the state contain descriptions of conduct and language in the workplace similar to what Lyle describes she experienced in her job at "Friends." Courts repeatedly have found that such conduct, if severe or pervasive, violates the Fair Employment and Housing Act even if it is not directed at the plaintiff.

However, the published court decisions have not clearly addressed one of the issues central to Lyle's case against Warner Brothers. To what extent should an employee be permitted to complain about offensive language or conduct that is arguably part of the job he/she was hired to perform?

Outside the entertainment industry, employees frequently hold positions that subject them to language or conduct that many would find offensive.

A word processor in a police department may have to read and/or input the graphic details of sexually violent crimes like rape and assault. A bus driver often must listen to language from bus patrons who are intoxicated, profane and/or verbally abusive. A legal secretary in a criminal defense firm may have to make copies of the photographic exhibits in a pornography case. And a personnel director may be required to receive and review detailed sexual-harassment complaints from employees as part of an internal administrative procedure.

All of these jobs subject the employee to language and conduct that would be embarrassing to many members of society. Yet that language and conduct is an integral part of the job for which the employee was hired.

Should they be able to sue because they are offended by a job that necessarily involves the conduct they find offensive?

In Lyle's case, she was told that there would be sexual discussions in the writers' meetings, so she could not contend that what she experienced was completely unexpected. The defendants argued strenuously in their petition for review filed with the Supreme Court that the crude sexual conversations were essential to the creative process and, therefore, a necessary part of the job.

Presumably, Lyle will argue that it physically depicting masturbation was not necessary to develop story lines for a television series.

If Lyle is allowed to proceed with the part of her lawsuit that alleges a hostile work environment in the writers' meetings, employers outside the entertainment industry will need to reassess how they fill positions that subject employees to language or conduct that many would find offensive.

They may need to restructure those jobs, perhaps isolating the more-embarrassing aspects so they can be performed by a limited number of employees. Employers may have to consider providing a complete disclosure of unsavory job details to applicants, perhaps with examples of what the job may entail.

Perhaps they will consider obtaining waivers of the right to sue, although such waivers undoubtedly would be subject to challenge as involuntary and maybe even unconscionable.

If the Supreme Court finds that Lyle does not have the right to recover for the conduct that occurred in the writers' meetings she was hired to attend, Lyle still may have a legitimate basis to recover damages. In addition to what she encountered in the writers' meetings, she apparently faced offensive language and conduct outside the meetings.

Lyle appears to have a reasonable argument that she did not expect that the sexual comments and conduct would continue in the hallways and break room after the writers' meeting was over. It is hard to imagine how the defendants could contend that it was "necessary" to their creative process to make comments about oral sex or feign masturbation while walking in the halls of the television studio or taking a break in the presence of other employees.

Lyle can reasonably argue that she did not take the job to be subjected to crude and vulgar behavior everywhere she went in the studio building.

There is some analogous precedent for distinguishing between conduct that is an integral part of the job and conduct that is beyond the scope of the job. Earlier this year, the 2nd U.S. Circuit Court of Appeals in Dawkins v. County of Westchester found that female correctional officers could sue for sexual harassment by their male co-employees. The court was careful to distinguish the offensive conduct and language faced by the female plaintiffs in their dealing with inmates, a group the court sardonically described as "men not distinguished for their commendable deportment or courtly display of social graces."

Although the plaintiffs had not sued for a hostile environment created by inmates, the court analyzed whether the environment was so hostile because of the inmates that male co-employees could not make it any more hostile than it was.

The court observed that the plaintiffs were hired to deal with inmates but did not accept the job to be subjected to offensive conduct from their co-employees. Therefore, the female correctional officers were entitled to pursue their harassment lawsuit against the employer and the male co-employees.

A distinction between arguably offensive conduct inherent in the job and conduct outside the scope of the job seems a reasonable line for the Supreme Court to draw in Lyle.

It would protect employers in many industries from lawsuits by employees complaining about what they experience in the jobs they were hired to perform. And it would assure that employees retain the right to sue for being subjected to gratuitous harassment in the workplace that has nothing to do with the performance of their jobs.
        
Richard S. Whitmore is a name partner in the San Francisco office of Liebert Cassidy Whitmore. The firm represents management in employment matters.