Discrimination Cases Update

Gender Discrimination/Independent Contractor

The U.S. Court of Appeals for the First Circuit ruled that a TV series hostess wasn't an employee but rather an independent contractor unprotected by Title VII of the Civil Rights Act of 1964. Alberty-Velez v. Corporacion De Puerto Rico Para La Difusion Publica, 361 F.3d 1. Plaintiff Victoria Lis Alberty-Velez served as hostess of a TV series that profiled municipalities on WIPR in Puerto Rico. When she filed suit for pregnancy and gender discrimination, the district court granted summary judgment for the TV station.

Affirming in a ruling of first impression, the court of appeal initially decided that whether an individual qualifies as an employee under Title VII should be based on a common law agency test. Under this test, the appeals court then noted: “First, a television actress is a skilled position requiring talent and training not available on-the-job. … Second, Alberty provided the 'tools and instrumentalities' necessary for her to perform. Specifically, she provided, or obtained sponsors to provide, the costumes, jewelry, and other image-related supplies and services necessary for her appearance. … Third, WIPR could not assign Alberty work in addition to filming 'Desde Mi Pueblo.' [The hostess signed a new contract to work on each episode.] … Fourth, the method of payment favors independent contractor status. Alberty received a lump sum fee for each episode. … Fifth, WIPR did not provide Alberty with benefits. She did not receive paid leave, health insurance, life insurance, or retirement benefits from WIPR. … Sixth, Alberty's tax treatment suggests independent contractor status. Both she and WIPR classified her income as deriving from professional services rendered rather than wages earned.”

The Court of Appeal of California, Second Appellate District, Division Seven, ruled that “creative necessity” is not an affirmative defense to a sexual harassment claim, but that it can be considered by a jury along with other factors in determining whether the defendants' conduct created a hostile work environment. Lyle v. Warner Brothers Television Productions, B160528. Plaintiff Amaani Lyle, an African-American woman, was hired to be a writers' assistant on the TV series “Friends.” She was fired 4 months later because the defendants contended she was unable to type fast enough. Lyle filed suit alleging race and gender discrimination, racial and sexual harassment, and retaliation for opposing racial discrimination against African-Americans in the series casting. The trial court granted summary judgment in favor of the defendants. The court of appeal reversed on the harassment claims.

Lyle testified that at meetings, the show's writers had continuously told crude sex jokes, made disparaging remarks about women and pretended to masturbate in her presence. The writers argued such activity was necessary to write for a show like “Friends,” which was based on the sexual activity of its characters. The court of appeal noted: “A jury could find the sexual conduct in this case particularly severe because Lyle was a captive audience.” But the court also noted that the defendants' “creative necessity” argument was analogous to the “business necessity” defense in disparate impact cases under the federal Fair Employment and Housing Act. And though “the 'creative necessity' defense has its limits,” the court of appeal concluded: “Within such limits, however, defendants may be able to convince a jury the artistic process for producing episodes of 'Friends' necessitates conduct which might be unacceptable in other contexts.”

The U.S. Court of Appeals for the Eighth Circuit held that a male TV station manager's comments to, and actions toward, a female photojournalist working at the station were “inappropriate, immature, and unprofessional”, but that they did not support a sexual harassment claim. Henthorn v. Capitol Communications Inc., 359 F.3d 1021. Plaintiff Keri Henthorn was hired as a photojournalist at WOI-TV in Des Moines, IA. After later resigning, she filed suit under Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act. Henthorn claimed that, among other things, station manager Jim Parker had repeatedly asked her out during her first few weeks of work, called her at home to invite her to a concert and offered to rip up a poor-job-performance memo about Henthorn if she would have a drink with him. The station reprimanded Parker, suspended him for 3 days and assigned Henthorn another supervisor. Henthorn nevertheless believed that Parker was responsible for negative schedule and assignment changes in her job. The district court granted summary judgment in favor of the defendants.

Affirming, the appeals court concluded under the totality of the circumstances that Parker's comments and actions didn't create a hostile work environment. According to the court: “Parker's requests that Henthorn go out with him were repetitive and annoying, but they were not lewd or threatening. Parker did not touch Henthorn inappropriately, nor did he make sexual comments about her in her presence. His two late-night/early morning calls urged her to accept his social invitations and expressed his interest in her, but they did not contain sexual propositions. Although Henthorn was made uncomfortable by Parker's conduct, she was able to continue to perform her assignments.”

Gender Discrimination/Independent Contractor

The U.S. Court of Appeals for the First Circuit ruled that a TV series hostess wasn't an employee but rather an independent contractor unprotected by Title VII of the Civil Rights Act of 1964. Alberty-Velez v. Corporacion De Puerto Rico Para La Difusion Publica , 361 F.3d 1. Plaintiff Victoria Lis Alberty-Velez served as hostess of a TV series that profiled municipalities on WIPR in Puerto Rico. When she filed suit for pregnancy and gender discrimination, the district court granted summary judgment for the TV station.

Affirming in a ruling of first impression, the court of appeal initially decided that whether an individual qualifies as an employee under Title VII should be based on a common law agency test. Under this test, the appeals court then noted: “First, a television actress is a skilled position requiring talent and training not available on-the-job. … Second, Alberty provided the 'tools and instrumentalities' necessary for her to perform. Specifically, she provided, or obtained sponsors to provide, the costumes, jewelry, and other image-related supplies and services necessary for her appearance. … Third, WIPR could not assign Alberty work in addition to filming 'Desde Mi Pueblo.' [The hostess signed a new contract to work on each episode.] … Fourth, the method of payment favors independent contractor status. Alberty received a lump sum fee for each episode. … Fifth, WIPR did not provide Alberty with benefits. She did not receive paid leave, health insurance, life insurance, or retirement benefits from WIPR. … Sixth, Alberty's tax treatment suggests independent contractor status. Both she and WIPR classified her income as deriving from professional services rendered rather than wages earned.”

The Court of Appeal of California, Second Appellate District, Division Seven, ruled that “creative necessity” is not an affirmative defense to a sexual harassment claim, but that it can be considered by a jury along with other factors in determining whether the defendants' conduct created a hostile work environment. Lyle v. Warner Brothers Television Productions, B160528. Plaintiff Amaani Lyle, an African-American woman, was hired to be a writers' assistant on the TV series “Friends.” She was fired 4 months later because the defendants contended she was unable to type fast enough. Lyle filed suit alleging race and gender discrimination, racial and sexual harassment, and retaliation for opposing racial discrimination against African-Americans in the series casting. The trial court granted summary judgment in favor of the defendants. The court of appeal reversed on the harassment claims.

Lyle testified that at meetings, the show's writers had continuously told crude sex jokes, made disparaging remarks about women and pretended to masturbate in her presence. The writers argued such activity was necessary to write for a show like “Friends,” which was based on the sexual activity of its characters. The court of appeal noted: “A jury could find the sexual conduct in this case particularly severe because Lyle was a captive audience.” But the court also noted that the defendants' “creative necessity” argument was analogous to the “business necessity” defense in disparate impact cases under the federal Fair Employment and Housing Act. And though “the 'creative necessity' defense has its limits,” the court of appeal concluded: “Within such limits, however, defendants may be able to convince a jury the artistic process for producing episodes of 'Friends' necessitates conduct which might be unacceptable in other contexts.”

The U.S. Court of Appeals for the Eighth Circuit held that a male TV station manager's comments to, and actions toward, a female photojournalist working at the station were “inappropriate, immature, and unprofessional”, but that they did not support a sexual harassment claim. Henthorn v. Capitol Communications Inc ., 359 F.3d 1021. Plaintiff Keri Henthorn was hired as a photojournalist at WOI-TV in Des Moines, IA. After later resigning, she filed suit under Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act. Henthorn claimed that, among other things, station manager Jim Parker had repeatedly asked her out during her first few weeks of work, called her at home to invite her to a concert and offered to rip up a poor-job-performance memo about Henthorn if she would have a drink with him. The station reprimanded Parker, suspended him for 3 days and assigned Henthorn another supervisor. Henthorn nevertheless believed that Parker was responsible for negative schedule and assignment changes in her job. The district court granted summary judgment in favor of the defendants.

Affirming, the appeals court concluded under the totality of the circumstances that Parker's comments and actions didn't create a hostile work environment. According to the court: “Parker's requests that Henthorn go out with him were repetitive and annoying, but they were not lewd or threatening. Parker did not touch Henthorn inappropriately, nor did he make sexual comments about her in her presence. His two late-night/early morning calls urged her to accept his social invitations and expressed his interest in her, but they did not contain sexual propositions. Although Henthorn was made uncomfortable by Parker's conduct, she was able to continue to perform her assignments.”