In Lyle v. Warner Brothers Television Productions (— Cal.Rptr.3d —, 2006 WL 1028558, Cal., Apr. 20, 2006), the California Supreme Court considered whether an employee could proceed with her claim of sexual harassment under the Fair Employment and Housing Act (FEHA) based on the use of sexually coarse and vulgar language in the workplace. The Court held that, because the language was not directed at the employee “because of her sex” or was not severe or pervasive, employee could not proceed.
Employee, Amaani Lyle, worked as a comedy writers’ assistant on the production of the popular television show Friends. Before she was hired, “she was forewarned that the show dealt with sexual matters and that, as an assistant to the comedy writers, she would be listening to their sexual jokes and discussions about sex.” Employee responded that sexual discussions did not make her uncomfortable, and she was subsequently hired as a writers’ assistant.
After four months, Employee was fired because of problems with her transcription and typing. Employee sued Defendants, Warner Brothers Television Productions, NBC studios, Bright, Kauffman, Crane Productions, and three producers-writers, for sexual harassment and other discrimination and harassment claims. The trial court ruled in favor of all Defendants without a trial, and the California Supreme Court agreed to hear Employee’s case to decide the issue of whether “the use of sexually coarse and vulgar language can constitute harassment based on sex within the meaning of the FEHA.”
Supreme Court Decision
Under the FEHA, it is unlawful for an employer, “because of…sex…to harass an employee.” (Cal. Gov. Code § 12940 subd. (j)(1)) The phrase “because of sex” means that “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Thus, vulgar or sexually disparaging language in the workplace is not, by itself, enough to show harassment, because an employee must also show disparate treatment on the basis of sex. If an employee meets the burden of showing disparate treatment because of sex, the employee must also show that the conduct was sufficiently severe or pervasive to create a sexually hostile work environment.
The California Supreme Court determined that Employee did not show that she was subjected to disparate treatment because of sex. For the most part, the instances of sexual antics and sexual discussions by the writers of Friends were not aimed at Employee or any other female employee. The conduct took place in group sessions with both male and female participants. The discussions of personal sexual experiences and preferences and the physical gesturing were, not surprisingly, part of the creative process for a situation comedy that featured young sexually active adults and sexual humor.
Acknowledging that some of the writers’ comments were directed specifically at female cast members because of their sex and that some of the writers used gender-based epithets, the Supreme Court nevertheless concluded that the comments were not sufficiently severe or pervasive to create a sexually hostile work environment – Employee testified that she mostly viewed the writers and their conduct as annoying, juvenile, and counterproductive, rather than extreme or destructive; and Employee’s evidence, which was meager, revealed that the comments happened infrequently.
The Court concluded that “none of the offensive conduct complained of meets both the ‘because of sex’ and ‘severe or pervasive’ requirements for establishing a hostile work environment sexual harassment claim.” Therefore, Employee may not proceed with her claim of sexual harassment. The Supreme Court sent the case back to the Court of Appeal to consider Employee’s claims of racial discrimination in light of this decision.
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