The plaintiff, Amaani Lyle, claims she was subjected to a barrage of vulgar and offensive language while working on "Friends" as a writers’ assistant. Three of the show’s male writers--Adam Chase, Gregory Malins and Andrew Reich--allegedly turned the writers’ room into a replica of a frat house, describing their own sexual experiences in graphic detail, joking about the supposed infertility of one of the actresses and simulating masturbation. Lyle, who was supposed to take notes, contends she was a "captive" witness to all this.
After more than four years of litigation, Lyle is still hoping to present her case to a jury. Warner Bros., which produced "Friends," is fighting to get it dismissed, arguing that the writers were engaging only in creative brainstorming protected under the First Amendment and that they cannot be held liable for speech that was not specifically targeted at Lyle.
California’s Fair Employment and Housing Act bars harassment of an employee "because of sex." Warners says "because of" means "motivated by the victim’s sex, gender or related attributes." Since none of the writers’ allegedly offensive language was targeted at Lyle, the defense argument goes, she cannot show the required motivation or that the harassment was severe or pervasive enough to alter the conditions of her employment.
The studio, however, lost the last round of litigation in April 2004 when an appeals court ruled there was "sufficient evidence from which a reasonable jury could find the writers’ room on ‘Friends’ was a hostile or offensive work environment for a woman."
If the Supreme Court affirms that ruling, says Adam Levin, an attorney representing Warners, "employers in virtually any workplace, including those where the discussion of potentially offensive matters is inextricably tied to the job, would have to quash any employee speech which could potentially offend others." Any workplace discussion of "anything sexual in nature"--even a jocular conversation at the office water cooler--could become fodder for litigation, Levin says.
The studio’s supporters include the Employers Group, a human resources management association based in Los Angeles. The appellate opinion "leaves many California workplaces open to a claim of ‘hostile environment’ harassment simply because the workplace includes occasional or regular references to sexual or other offensive matters," the group said in a brief.
"Friends" routinely pushed the boundaries of sexual frankness, making jokes out of everything from premature ejaculation to threesomes. According to Lyle, what she heard in the writers' room went far beyond the creative process.
Attorneys on Lyle’s side say the existing framework of sexual harassment law protects the creativity of the "Friends" writers and that Warners’ position would gut that framework. "It is nothing less than an attempt to exempt certain workplaces from the protections afforded under sexual and racial harassment laws," argues Shelley Gregory of the Legal Aid Society-Employment Law Center in San Francisco.
Bystander or target?
Lyle was hired in June 1999 for the coveted writers’ assistant job. Her duties included taking notes at the meetings where writers came up with ideas for the show. But after four months, Chase and Malins, who also were executive producers, fired her, explaining that she did not type fast enough to record their story discussions.
In October 2000, Lyle, who is black, sued for wrongful termination and racial and sexual harassment. "Friends" routinely pushed the boundaries of sexual frankness, making jokes out of everything from premature ejaculation to threesomes. According to Lyle, what she heard in the writers’ room went far beyond the creative process.
The writers, she testified in a deposition, frequently discussed their experiences with oral sex, and Malins and Chase engaged in constant banter about how Chase missed his chance to have sex with one of the actresses. Women who displeased the writers were called "bitches" and worse, and even the show’s stars were not safe from the verbal onslaught. They joked about Courteney Cox-Arquette’s difficulties conceiving a child. In April 2002, Los Angeles County Superior Court Judge David A. Horowitz dismissed all of Lyle’s claims, finding she had not presented sufficient evidence to merit sending the case to jury. The appeals court then reinstated everything except the wrongful termination claim.
The case, which the state Supreme Court is expected to hear later this year, has attracted nationwide interest and scholarly debate. On the defense side, no fewer than nine amicus briefs have been filed, with the Alliance of Motion Picture and Television Producers, the Writers Guild of America and the Regents of the University of California among those represented. Catherine MacKinnon, a law professor who pioneered the recognition of sexual harassment as a legal claim, sided with Lyle in a Los Angeles Times opinion piece. "At stake ... is nothing less than whether the pervasive pornographization of women will be permitted to destroy the law against harassment at work," she said.
For the most part, the defendants have not contested Lyle’s factual allegations. Reich, for one, admitted pantomiming masturbation in the writers’ room. What they are challenging is whether their conduct meets the legal test for hostile-work-environment sexual harassment. "This is about what kind of speech or conduct is properly regulated" under California employment law, Levin says.
Lyle is a "bystander plaintiff," insists the defense lawyer with the firm of Mitchell, Silberberg & Knupp in Los Angeles. "No one ever said anything to her that was offensive, no one touched her or propositioned her." If the law applies to the untargeted banter of the "Friends" writers, he argues, any "communicative workplace"--from newsrooms and advertising agencies to museums and universities--could be sued for harassment by an employee who heard something offensive, with chilling consequences for free speech.
"Allowing hostile-work-environment cases to go forward based on undirected speech in communicative workplaces ... would prevent the creation of work at the core of the First Amendment and lead to employee self-censorship and employer censorship," the producers alliance agrees in its amicus brief. "Prudent employers," it says, will have "to quash any speech that poses even the risk of offending others."
The plaintiff’s side, however, believes the question of untargeted speech is not one that the state Supreme Court should address. "How do we measure that?" Gregory asks. "If I’m in the room and I feel comments are being directed at me but my name is not being used, how do you draw the line?" Warners and its allies, she says, are trying to exempt from California law "any sexually or racially harassing conduct in any workplace that might be dubbed ‘creative.’ "
"They’re using this (case) as a way of narrowing the law," says Jeffrey Winikow, a Los Angeles attorney who represents employment law plaintiffs.
Given the costs of litigation, the employers’ concerns are understandable. Warners spent more than $400,000 on the trial court proceedings leading up to the dismissal. If the case were to go to a jury trial, the costs would easily exceed $1 million--with the potential for a jury award of damages on top of that.
Matter of context
Jennifer Drobac, a law professor at Indiana University and author of the new book Sexual Harassment Law: History, Cases and Theory, says the state’s Fair Employment and Housing Act already has checks and balances that protect employers in the creative world and elsewhere from meritless claims. A water-cooler discussion and other minor transgressions would not be severe or pervasive enough to alter employment conditions and make a sexual harassment case. Moreover, the alleged harassment has to be judged under an objective standard: Would a reasonable person in the plaintiff’s shoes be offended? Applying that standard in Lyle’s case, jurors would consider the context of the "Friends" workplace.
"It does go back to common sense and context," Drobac says. "You know whether something is banter that pertains to a story line or whether it’s really outside of the ballpark."
Employers, she recommends, can avoid litigation the usual way--by ensuring they have effective procedures in place to review employee complaints. "This is basic employee management."
The creative community, however, wants jurors--and employers, for that matter--to stay out of the writers’ room. "Writers would sit in terror of saying something offensive to an assistant," Levin says.
Warners points to examples of writers’ room brainstorming that sparked "Friends" script ideas. A discussion about what men do not understand about female sexuality, for example, inspired an episode in which Cox-Arquette’s character tried to explain women’s erogenous zones to one of the male characters. For Levin and others, nothing less than the elusive chemistry of creativity is at stake.
"Writers must feel not only that it’s all right to fail," the Writers Guild argues, "but also that they can share their most private and darkest thoughts without concern for ridicule or embarrassment or legal accountability."
Workforce Management, May 2005, pp. 73-75 -- Subscribe Now!The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.