Calif. Justices Consider Words Of TV Writers

The justices of the California Supreme Court recently seemed inclined to keep their fingers out of the creative process that helped breathe life into the characters on the TV sitcom “Friends.” The court had been asked to rule whether the show writers' sexually crude comments and simulations while hashing out TV scripts could constitute sexual harassment serious enough to cause a hostile work environment, especially for women and minorities. Lyle v. Warner Brothers Television Productions, S125171.

The six justices on hand for oral arguments appeared uncomfortable with the thought of forcing writers to curb their thoughts, words and actions, even if they often push the boundaries of sexual harassment. (Justice Ming Chin, recovering from surgery, was absent, but will participate by reviewing tapes of the arguments.) “This case is unique, is it not, in that it arises in the context of this creative environment?” Justice Kathryn Mickle Werdegar inquired.

Frat Boy Talk?

The case was filed by Amaani Lyle, a former writer's assistant for “Friends,” who claimed that the vulgar language and graphic antics used by the show's male writers during her 4-month employment in 1999 subjected her to a hostile work environment. She argued that constant talk about anal sex, blow jobs, “schlongs” and degrading descriptions of women had nothing to do with the show ' which was much tamer on air ' and was simply lewd, frat-boy entertainment for the writers.

The writers and Warner Brothers Television Productions, which produced “Friends,” responded by claiming that dirty talk and lewd actions ' such as simulating masturbation ' were part of the free-rolling, creative process that made “Friends” one of the most popular shows ever on TV. “It was one of the tools of the trade,” Adam Levin, a partner at Los Angeles' Mitchell Silberberg & Knupp who represents the writers and Warner Brothers, told the state supreme court justices.

The Court of Appeal of California, Second Appellate District, ruled in April 2004 that jurors should be allowed to decide whether Lyle had a valid claim.

[The court of appeal decided that "creative necessity" wasn't an affirmative defense to a sexual harassment claim, but that it a jury could consider it with other factors in deciding whether there was a hostile work environment. Lyle v. Warner Brothers Television Productions (117 Cal. App. 4th 1164; 12 Cal. Rptr. 3d 511 (Cal. App. 2d Dist. 2004). Lyle, who is African-American, had also claimed race discrimination and retaliation for her opposition to alleged discrimination against African-Americans in casting the series. The trial court granted summary judgment for the defendants. The court of appeal reversed on harassment. The Court of Appeal agreed: "A jury could find the sexual conduct in this case particularly severe because Lyle was a captive audience." But the court added that "creative necessity" was analogous to a "business necessity" defense in em-ployment disparate-impact cases. "[H]owever,” the court noted, “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 Supreme Court of California later denied Lyle's petition for review but granted the defense petition for review.]

On appeal, Warner Brothers and several amici curiae ' including the Motion Picture Association of America, Feminists for Free Expression and the University of California regents ' warned about the possible chilling effect the ruling could have were it to be upheld. The California High Court seemed to be in Levin's corner, with more than one justice noting that Lyle had been warned before she took the job that she would be exposed to foul language of sexual content.

“If she's told there's going to be sexual banter back and forth ' and that happens ' where's the alteration to conditions of employment?” Chief Justice Ronald George asked Scott Cummings, a Los Angeles lawyer who represents Lyle. George was referring to provisions of the state's Fair Employment and Housing Act (FEHA) that prohibit harassment so pervasive that it alters some condition of an employee's job.

Levin had earlier argued that Lyle faced no change in employment conditions because exposure to sexually charged speech was part and parcel to her work. Even so, Justices Werdegar and Carlos Moreno played the devil's advocate by asking whether writers had absolute immunity from harassment claims or if there were limits on what could be said in writers' meetings. Levin said there “are limits, no question about it,” such as not being able to direct racial epithets at minority employees. He also said that writers for the movie “Finding Nemo” or the TV series “Sesame Street” likely wouldn't engage in such banter.

Werdegar seemed to have some problems with the intensity of some of the talk Lyle endured. Although the employee had been warned about “sexual themes and low-brow humor,” Werdegar said, “I'm not sure 'low-brow humor' would have prepared her for what she was exposed to in that room.”

“Are there no limitations short of criminal conduct?” she asked.

'Because Of' Is Requirement

But Cummings appeared to have hit a brick wall when he tried to argue that general sexual language was enough to constitute harassment and that it didn't have to be targeted directly at Lyle or any other employee. Justices Moreno and Marvin Baxter pounced on that, saying that didn't seem to fly because the statutory language requires that harassment be “because of” a person's gender. Moreno said there is no indication that the writers' comments and actions were based on sex, and Baxter agreed. “The [statutory] language is 'because of their sex,'” Baxter said. “If the comments are equally objectionable to men and women, you don't have a FEHA violation.”

Los Angeles attorney Jeffrey Winikow, arguing on behalf of the California Employment Lawyers Association as an amicus for Lyle, told the justices that they needed to decide whether the “gauntlet of abuse” suffered by Lyle was a barrier to equal employment. Justice Carol Corrigan asked whether that meant women “are entitled to a more genteel work environment than men.” “The focus,” Winikow said, “is not on gentility, but on equal opportunity.”

A ruling in by the justices is due by May.

The justices of the California Supreme Court recently seemed inclined to keep their fingers out of the creative process that helped breathe life into the characters on the TV sitcom “Friends.” The court had been asked to rule whether the show writers' sexually crude comments and simulations while hashing out TV scripts could constitute sexual harassment serious enough to cause a hostile work environment, especially for women and minorities. Lyle v. Warner Brothers Television Productions, S125171.

The six justices on hand for oral arguments appeared uncomfortable with the thought of forcing writers to curb their thoughts, words and actions, even if they often push the boundaries of sexual harassment. (Justice Ming Chin, recovering from surgery, was absent, but will participate by reviewing tapes of the arguments.) “This case is unique, is it not, in that it arises in the context of this creative environment?” Justice Kathryn Mickle Werdegar inquired.

Frat Boy Talk?

The case was filed by Amaani Lyle, a former writer's assistant for “Friends,” who claimed that the vulgar language and graphic antics used by the show's male writers during her 4-month employment in 1999 subjected her to a hostile work environment. She argued that constant talk about anal sex, blow jobs, “schlongs” and degrading descriptions of women had nothing to do with the show ' which was much tamer on air ' and was simply lewd, frat-boy entertainment for the writers.

The writers and Warner Brothers Television Productions, which produced “Friends,” responded by claiming that dirty talk and lewd actions ' such as simulating masturbation ' were part of the free-rolling, creative process that made “Friends” one of the most popular shows ever on TV. “It was one of the tools of the trade,” Adam Levin, a partner at Los Angeles' Mitchell Silberberg & Knupp who represents the writers and Warner Brothers, told the state supreme court justices.

The Court of Appeal of California, Second Appellate District, ruled in April 2004 that jurors should be allowed to decide whether Lyle had a valid claim.

[The court of appeal decided that "creative necessity" wasn't an affirmative defense to a sexual harassment claim, but that it a jury could consider it with other factors in deciding whether there was a hostile work environment. Lyle v. Warner Brothers Television Productions (117 Cal. App. 4th 1164; 12 Cal. Rptr. 3d 511 (Cal. App. 2d Dist. 2004). Lyle, who is African-American, had also claimed race discrimination and retaliation for her opposition to alleged discrimination against African-Americans in casting the series. The trial court granted summary judgment for the defendants. The court of appeal reversed on harassment. The Court of Appeal agreed: "A jury could find the sexual conduct in this case particularly severe because Lyle was a captive audience." But the court added that "creative necessity" was analogous to a "business necessity" defense in em-ployment disparate-impact cases. "[H]owever,” the court noted, “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 Supreme Court of California later denied Lyle's petition for review but granted the defense petition for review.]

On appeal, Warner Brothers and several amici curiae ' including the Motion Picture Association of America, Feminists for Free Expression and the University of California regents ' warned about the possible chilling effect the ruling could have were it to be upheld. The California High Court seemed to be in Levin's corner, with more than one justice noting that Lyle had been warned before she took the job that she would be exposed to foul language of sexual content.

“If she's told there's going to be sexual banter back and forth ' and that happens ' where's the alteration to conditions of employment?” Chief Justice Ronald George asked Scott Cummings, a Los Angeles lawyer who represents Lyle. George was referring to provisions of the state's Fair Employment and Housing Act (FEHA) that prohibit harassment so pervasive that it alters some condition of an employee's job.

Levin had earlier argued that Lyle faced no change in employment conditions because exposure to sexually charged speech was part and parcel to her work. Even so, Justices Werdegar and Carlos Moreno played the devil's advocate by asking whether writers had absolute immunity from harassment claims or if there were limits on what could be said in writers' meetings. Levin said there “are limits, no question about it,” such as not being able to direct racial epithets at minority employees. He also said that writers for the movie “Finding Nemo” or the TV series “Sesame Street” likely wouldn't engage in such banter.

Werdegar seemed to have some problems with the intensity of some of the talk Lyle endured. Although the employee had been warned about “sexual themes and low-brow humor,” Werdegar said, “I'm not sure 'low-brow humor' would have prepared her for what she was exposed to in that room.”

“Are there no limitations short of criminal conduct?” she asked.

'Because Of' Is Requirement

But Cummings appeared to have hit a brick wall when he tried to argue that general sexual language was enough to constitute harassment and that it didn't have to be targeted directly at Lyle or any other employee. Justices Moreno and Marvin Baxter pounced on that, saying that didn't seem to fly because the statutory language requires that harassment be “because of” a person's gender. Moreno said there is no indication that the writers' comments and actions were based on sex, and Baxter agreed. “The [statutory] language is 'because of their sex,'” Baxter said. “If the comments are equally objectionable to men and women, you don't have a FEHA violation.”

Los Angeles attorney Jeffrey Winikow, arguing on behalf of the California Employment Lawyers Association as an amicus for Lyle, told the justices that they needed to decide whether the “gauntlet of abuse” suffered by Lyle was a barrier to equal employment. Justice Carol Corrigan asked whether that meant women “are entitled to a more genteel work environment than men.” “The focus,” Winikow said, “is not on gentility, but on equal opportunity.”

A ruling in by the justices is due by May.