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California S.C. Hears Arguments on the Friends Sexual Harassment Case:

An interesting report on the arguments yesterady from the N.Y. Sun. My take on the case can be found here. In short,

if the Lyle opinion is allowed to stand, any Californian whose job involves dealing with controversial matters that raise issues potentially offensive to some people — AIDS education, abortion counseling (pro or con), civil rights and affirmative action, and much more — will be at risk of a harassment lawsuit. The only out provided for defendants by the California Court of Appeals is to prove that any "offensive" comments are made "within 'the scope of necessary job performance,'" a determination that, as UCLA law professor Eugene Volokh notes, will necessarily involve vague and subjective perceptions of what speech is "necessary" to any particular job.

Scott Moss (mail) (www):
I'm a defender of the law of harassment / hostile work environments, but I agree that this case seems to go too far. There's already a unanimous U.S. Supreme Court case (Clark County v. Breeden) indicating that if the nature of your job entails hearing sexually offensive stuff, you can't claim a hostile work environment based on your exposure to that kind of offensiveness (in that case, it was an HR officer upset she heard another manager mention that an applicant had made an off-color comment).

The one thing I'll say for the "Friends" case: we shouldn't have a broad rule that because your job entails hearing some sexually explicit things, you can't ever sue for a hostile work environment, on some "assumption of risk" theory. It's possible, for example, that an HR person has to field complaints about explicit behavior and deal with gritty realities -- but that doesn't mean the HR person can be subjected to a hostile work environment on an ongoing basis, with comments and incidents far more offensive than what she ordinarily has to deal with. So I think the Friends case probably should and will be rejected on narrow grounds: this plaintiff is not alleging sexual hostility different in kind from what her job ordinarily entailed.
2.15.2006 6:10pm
Anderson (mail) (www):
I, like DB, believe that where controversial subjects are raised in the course of things, open discussion should properly be allowed. So let's hope for a reversal in the Friends case.
2.15.2006 6:14pm
steve k:
The implications of this case are a disaster not just for the entertainment industry, but for basic First Amendment freedoms. I think, in fact, it's time for the courts to reconsider their broad standard of the hostile work environment.
2.15.2006 6:24pm
Peter B. Siroka (www):
FYI, a Note on this very subject was recently published in the Hofstra Law Review, and can be found here: http://www.hofstra.edu/PDF/law_lawrev_tilton_vol34no1.pdf. Citation: 34 Hofstra L. Rev. 229.

Best,

Peter B. Siroka
Managing Editor of Articles, Vol. 34
Hofstra Law Review
2.15.2006 7:19pm
golden state lawyer (mail):
It's "California Court of Appeal," not "Appeals," but more to the point I hope they support free speech on this one.
2.15.2006 7:44pm
Hans Bader (mail) (www):
Warner Brothers has a meritorious First Amendment defense, but the California Supreme Court shouldn't even reach it, since a sensible interpretation of harassment law only reaches harassment "because of . . . sex," not sexual remarks not aimed at the plaintiff, much less aimed at her based on her sex.

The Individual Rights Foundation makes this point at length in its amicus brief in support of Warner Brothers.

Although state supreme courts often refuse to require that sexual harassment occur "because of sex" to be actionable, federal appeals courts often enforce the requirement that the plaintiff show that the behavior (or speech) occur because of her sex. See, for example, the Eighth Circuit's decision in Scusa v. Nestle U.S.A, Inc. (1998), the Tenth Circuit's decision in Duncan v. Denver Dept. of Public Safety (2005), the Eleventh Circuit's Succar v. Dade County decision, and the Second Circuit's decision in Brown v. Henderson.

This avoids equating speech on sexual topics with harassment just because the topics are unavoidably offensive, and thus avoids one potential conflict with the First Amendment. In so doing, it also effectuates the canon of constitutional doubts, a longstanding principle of statutory construction.
2.15.2006 7:54pm
Edward A. Hoffman (mail):
Many people seem to misunderstand the facts of the case. The writers' comments were not part of the creative process; they just happened to occur during writers' meetings. These guys were telling the kind of sexual jokes and stories men usually won't tell in mixed company (unless they already know the woman won't mind) and were far too explicit to become -- even in watered-down form -- part of a "Friends" script.

The defendants' argument is that the entire writing community should be absolutely immune from liability for hostile work environment harassment -- a basis for liability in any other industry -- *even if the statements which underlie the claim were completely unrelated to the creative process*.

Lyle and her attorneys agree that work-related statements should be exempt from such liability, which is exactly the opposite of what most commentators claim they're arguing. But why should an employee subjected to comments that would make for a slam-dunk harassment case in any other field be barred even from bringing an action against writers who made those comments gratuitously?

I respect the free speech arguments some have made in the defendants' favor, but some of these arguments go so far that they would eliminate sexual harassment liability from all workplaces. The Lyle case isn't about whether courts should recognize claims for hostile workplace harassment; instead, it's about whether writers should be free to do what would subject anyone else to serious liability.

Those who argue about what Lyle should have to prove are missing the point. Those arguments go to whether she should win at trial (the case hasn't gone to trial yet) and only matter if she is able to bring this kind of lawsuit in the first place -- which the defendants want the court to say she can't.

Keep in mind that the definition of "writer" is hard to pin down. A number of news media organizations have filed amicus briefs arguing that they too should be immune from such claims, even though it is hard to imagine how X-rated humor could have any bearing on the text of a 6:00 p.m. newscast or a CNN.com article.

How far would this immunity go? Professors spend a lot of their time writing; should they be free to create hostile work environments on that basis? What about website designers, advertising professionals, lawyers (I know I spend most of my time writing), judges, and others who spend part of their workdays deciding how to write something? Isn't it reasonable to expect them to at least be able to show that the disputed comments were actually part of the work they were doing at the time?
2.15.2006 10:50pm
Justin (mail):
Though I don't think Sexual Harrassment should reach this behavior general (I support sexual harrassment rules only when the harrassment is targeted at an unwanted individual), I think Hoffman's point sums up my problem with DBernstein's take. Bernstein, we all know, opposes sexual harrassment rules in general, and that's a fine reason to not like the decision, but the line drawing here makes no sense *given* the validity of sexual harassment (which is not at issue in this case).

I'm also curious how David Bernstien ends up with this portion: AIDS education, abortion counseling (pro or con), civil rights and affirmative action, and much more - this makes absolutely no sense, given even remotely reasonable definition of "harassment"
2.16.2006 12:11am
Lev:
I am not sure I understand why the usual concepts of essential job responsibilities + hostile environment sexual harassment don't put this case away.

To the extent sex talk is related to the essential job responsibility of writing sexually suggestive dialogue, the most sexually suggestive dialog that can pass "corporate standards" (if any) to be approved for the air, for a modern sitcom, it should be fine.

To the extent the atmosphere of the workplace outside of the essential job responsibility is laden with gross sex talk inappropriate for any workplace, then one has 1. workers who don't know how to behave in public, and 2. management that does not want to enforce workplace standards for whatever reason.

The the workplace is that of a private employer, is any employee, contract or otherwise, entitled by the 1st amendment to say anything in it? Is the private employer not entitled to set standards for workplace behavior, of what will and will not be tolerated?

The funniest thing in the NYSun article was the claim that an adverse decision would lead to lower quality television programs.
2.16.2006 12:15am
cmp:
Edward Hoffman's post glosses over a number of key issues. Among them is the question whether the conduct in question really is the basis for liability in any other industry--the statutory "because of sex" issue. But more important I think is the question how and by whom it is decided whether the writers' comments are "part of the creative process." The Court of Appeal held that the question goes to the jury, the defendant has the burden of proof, and the standard is that, to avoid liability, the challenged conduct must be "necessary" to the creative process. Under that set of rules, the chilling effect of the harassment provision is profound--an employer would have to prohibit any conduct that a jury might conclude was "uneccessary" to the creative process. Since a jury could conclude that every unused joke or conceptual dead end was "unnecessary" the creative process would be pretty much squelched.
2.16.2006 1:04am
Fede (mail):
Lev wrote:
The workplace is that of a private employer, is any employee, contract or otherwise, entitled by the 1st amendment to say anything in it? Is the private employer not entitled to set standards for workplace behavior, of what will and will not be tolerated?
Might want to remember that it's not the 'private employer' setting the standard here, but rather the government, acting on behalf of an employee who is merely offended by off-color remarks (as opposed to, say, one who is being extorted for sex with the threat of being fired). I'd say light touch is in order.

Anyway, you're 'approved for air' speech code is a bad idea, since what can be shown on television is already subject to a great deal of debate and question. You can go through the commentaries of dozens of shows and TV movies and hear producers bitching about this or that scene being cut or some line being doctored, something clearly over the line being unexpectedly given the green light, or something allowed once but stricken from the reruns. Your code would, for practical reasons, force employers to the most conservative standard available, effectively babifying TV and almost certainly prohibiting writers from discussing things they could actually see on prime time.

Moreover, barring convincing evidence to the contrary, it'd be a bad idea to include speech not 'specifically related to the creative process' because so much of that 'creative process' involves shooting the breeze and including amusing stuff that comes up in conversation -- it produces scripts which are much more natural. I'd hate to see this go through and become consistent, as we'd soon see 'sensitive' crew filing lawsuits every time some comedian or actor makes an off-color ad-lib after a screw-up on the set.
2.16.2006 1:21am
steve k:
I'm aware of the procedural posture of the case, but I still think Edward Hoffman gets it wrong. Even accepting the broad reach of sexual harrassment law, to simply claim the writer's comments were not part of the creative process should be considered wrong as a matter of law. (That it will be considered wrong as a finding of fact I have little doubt, but that's too late.)

The creative process is mysterious and (in large part) unconscious, and requires--especially on a show that relies on sexual and lowbrow humor--a complete willingness to go in any direction. The writers can't be afraid to explore odd areas--even jokes and riffs and silly comments that could never be put into a script. Much of writing is going down blind alleys.

This is especially true at the freewheeling "table," where all the comedy writers get together and brainstorm. Merely allowing this case to go to trial will make it so that everyone must hold back, be uptight, and not do as good a job as they might, perhaps not even a proper job. If this means we have a sexual harrassment-free zone in the writers' room, so much the better.
2.16.2006 1:35am
Huggy (mail):
Wonder how many of these lawsuits would be filed if the win-the-lottery effect was taken out.
There would still be the I'll-get-those-AHs.
2.16.2006 7:45am
Hans Bader (mail) (www):
The procedural posture weighs in favor of the defendant, Warner Brothers, not the plaintiff, Lyle. Her harassment claim was weak enough to merit dismissal before trial.

The case was not dismissed on a motion to dismiss (or demurrer), where the courts would have to indulge every reasonable inference in favor of the plaintiff.

Instead, the case was dismissed on summary judgment, a stage where the plaintiff had the responsibility to submit evidence for her claim that she was subjected to harassment based on her sex.

She never submitted any evidence that the comments she overheard or witnessed were made because of her sex (as would be required by various federal appeals courts, which require a showing of disparate treatment or intentional discrimination in harassment cases).

Even assuming that one can bring a disparate-impact (unintentional discrimination) hostile environment claim, an assumption that some federal judges have rejected, the plaintiff did not meet the evidentiary requirements for a disparate impact claim. (Indeed, she did not even allege such a claim).

Most (although not all) of the comments she complained about would have either offended both men and women or neither men nor women, so any hostile environment she experienced was not distinctly gender-based.

(The disparate impact of any sexual comments cannot be just assumed without statistical proof. In a disparate-impact claim, the plaintiff has the burden of actually demonstrating a disparity on summary judgment, before the burden of defending the necessity of its practices even shifts to the defendant. And it violates the equal protection clause to make the blanket assumption that women are more sensitive to sexual speech than men, as the South Carolina Supreme Court observed in In re Joseph T. (1993)).

And most of the female writers in her workplace don't seem to have minded the comments any more than the male writers. Under Coe v. Yellow Freight and its progeny, you can't have a disparate-impact claim based on a single aggrieved female or black employee; the challenged practice has to adversely affect a statistically significant number of people. Moreover, the fact that the plaintiff was the only aggrieved female employee suggests that the comments, even if offensive, had little potential for any disparate impact on female employees as a class.
2.16.2006 8:04am
TC (mail):
Maybe this case will spark a spark a sexual harassment case by one of the jurors who had to hear this language during the trial. And heaven forbid one of the law clerks working on this case is offended by the speech at issue, because we've got another lawsuit brewing right there.

I wonder how the journalists who have been assigned this case have felt as well.
2.16.2006 8:20am
Houston Lawyer:
Can the right to be free of gratuitous sexually offensive material be waived? Sexual discrimination laws already have exceptions for Bona Fide Occupational Qualifications. Hence, the victory by Hooters management over the EEOC. I believe that it would be acceptable for an employer to discriminate against prudes, if the prudishness would interfere with job performance.

On the other hand, repeal of the whole idea that a hostile work environment constitutes actionable sexual discrimination would allow us all a higher measure of freedom.
2.16.2006 10:47am
Edward A. Hoffman (mail):
Houston Lawyer wrote:
On the other hand, repeal of the whole idea that a hostile work environment constitutes actionable sexual discrimination would allow us all a higher measure of freedom.
I wonder if Houston Lawyer's office staff would see things this way. I'm not suggesting that he is actually harassing anyone (a hostile work environment is a form of harassment, not discrimination as he wrote), but he clearly does not envision himself someday on the receivng end of that kind of hostility. Subordinates are almost always the ones aggrieved by hostile environment harassment, so those of us higher up in the workplace heirarchy shouldn't presume that everyone shares our perspective.

Eliminating this type of lawsuit "would allow us all a higher measure of freedom" only if the definition "us all" excludes those who can easily be made to suffer on the job and includes only those in a position to cause that kind of suffering.
2.16.2006 11:30pm
Lev:
Re: Fede 2.16.2006 1:21am

Might want to remember that it's not the 'private employer' setting the standard here, but rather the government, acting on behalf of an employee who is merely offended by off-color remarks (as opposed to, say, one who is being extorted for sex with the threat of being fired). I'd say light touch is in order.


If the private employer had had workplace standards and enforced them, then this case would not likely be in any court anywhere.

Anyway, you're 'approved for air' speech code is a bad idea,


You failed to read what I wrote. You comment is addressed to some other issue someone else might have raised.
2.17.2006 12:48am
Hans Bader (mail):
When a private employer is required by the government to restrict an employee's speech, compliance by the private employer is state action. (See, for example, the Fourth Circuit's decision in Korb v. Lehman).

Private employers can voluntarily prohibit any offensive speech as "harassment" if they choose to, but if the government makes them do so, the restriction is subject to the same tough First Amendment scrutiny as if the government did it directly.

And a lawsuit by a harassment plaintiff can't be based on protected speech, anymore than a defamation or intentional-infliction-of-emotional-distress claim by a private plaintiff can be based on protected speech. Awarding damages for speech is state action, according to the Supreme Court in New York Times v. Sullivan (1964) (private party's defamation claim implicates First Amendment). See also A.H.D.C. v. City of Fresno (9th Cir. 2006) (awarding sanctions against plaintiff that brought Fair Housing Act lawsuit based on protected speech that interfered with housing for members of protected class); DeAngelis v. El Paso Municipal Police Officers Ass'n, 51 F.3d 591, 596-97 (5th Cir. 1995) (First Amendment limits courts' ability to award sexual harassment damages to private plaintiff based on protected speech); Bryce v. Episcopal Church (10th Cir.) (same; rejecting sexual harassment claim based on internal church governance discussions protected by Free Exercise Clause about sexual matters plaintiff alleged created sexually hostile work environment).
2.17.2006 10:11am