Skip to main content
Nossaman LLP

E-Alerts

Talk About Sex Does Not Necessarily Mean Sexual Harassment


04/27/06

In a recent decision by our state’s highest court, the writers of the popular television show "Friends" were relieved of any liability to a terminated female secretary for sexual harassment, despite her admittedly daily exposure to vulgar, lewd and graphic sexual jokes, banter, and pantomimes. Under what are unusual if not unique facts, the court concluded that she could not show that she was subjected to a hostile work environment because of her sex and threw her case out of court. Lyle v. Warner Brothers Television Productions (April 20, 2006).

The suit was brought by Amaani Lyle, an African-American woman hired to transcribe jokes and dialogue created by the show’s writers during their screenwriting sessions. Although she was warned before she accepted the position that her job would expose her to discussions about sex, when she was fired 4 months later she turned around and alleged that she was subjected to a hostile work environment. She alleged that the writers discussed their own personal sexual experiences in graphic and crude language, ruminated about their fantasies of having sex with the female cast members, wrote vulgar words and drew obscene pictures, pantomimed masturbation and a few times referred to women using gender-related epithets.

The writers won the first round at the trial court on summary judgment (including an award of over $400,000 in attorney’s fees), only to see the appellate court rule that Lyle was entitled to a jury trial. But California’s Supreme Court reversed again, holding that no reasonable jury could find that the conduct alleged was severe enough or sufficiently pervasive to create a hostile work environment.

In reaching this conclusion, the Court made two interesting observations:

First, the use of sexually coarse and vulgar language in the workplace without more is not actionable "per se." The appropriate question is whether, under the specific circumstances, the vulgar language was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that was hostile or abusive to the employee because of her sex.

Second, the court reaffirmed that "it is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim."

While the case is fascinating in its conclusion that this particular plaintiff could not show a hostile work environment, the case arises out of such unusual facts that employers should not interpret the decision as giving their employees a license to use sexually explicit or vulgar language in the workplace. Some of the differences between working on scripts for "Friends" versus more typical work environments include:

  • Lyle faced a legal challenge in proving a hostile work environment because her job involved a creative process in which sexual jokes were part of the job requirement in the sense that the television show scripts were expected to appeal to adults and featured sexual themes. No doubt of great interest to the court was the fact that this sexually explicit banter in fact provided material that was used in the show’s scripts. In most jobs, there would not be the same legitimate purpose for engaging in the same type of discussions of sex.
  • Lyle had nothing to prove that the vulgar and sexually laden discussions were intended to make her uncomfortable, self-conscious, or to insult, ridicule or intimidate her, or women in general.
  • Lyle presented no evidence that showed that the offensive conduct affected her duties or work environment and her male counterparts in a disparate manner.

The Court noted that the use of vulgar or sexually disparaging language still may be relevant to show discrimination or disparate treatment, particularly when the language is derogatory or insulting to women generally and addressed to female employees particularly. Indeed, the parting words of the Court are instructive in recognizing the limited nature of the ruling:

"[W]e 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."

While Lyle demonstrates that not all sexual language and crude behavior will result in liability, employers cannot become complacent as the result of this ruling in its unusual circumstances. Employers should continue to be vigilant in limiting if not forbidding the use of coarse and vulgar language and obscenities in the workplace in order to avoid arguments about whether employees are subjected to a hostile work environment because of their sex. Employers also should have an up-to-date anti harassment policy and take other prudent measures, including complying with any applicable mandatory training, to prevent harassment and minimize potential liability.

Alison S. Hightower, partner at Nossaman, specializes in employment law. She can be reached at ahightower@nossaman.com.

  • Professionals
  • Practices
  • Success Stories
  • News
  • Events
  • Resources
  • Firm Pages