The court held April 20 that a female former assistant on "Friends" did not have a hostile working environment harassment claim against three male writers who allegedly subjected her to a "barrage" of vulgar and offensive language. The writers were not motivated by plaintiff Amaani Lyle’s gender, Justice Marvin R. Baxter wrote, recognizing that California’s Fair Employment and Housing Act "is not a civility code."
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," Baxter said in the decision. The "Friends" writers, he noted, were discussing sex in the context of generating scripts for a sexually themed TV show.
The ruling reversed an appeals court that had allowed Lyle to proceed with the case even though she did not allege that any of the writers’ conduct was specifically aimed at her.
"They interpreted FEHA in a way that is going to provide comfort to many employers," says attorney Adam Levin, who represented "Friends" producer Warner Bros. "A water-cooler discussion about Bill Clinton and Monica Lewinsky is not going to be actionable in any workplace."
But the Supreme Court stopped short of protecting any untargeted sexual speech in a creative workplace. "It’s a victory for employers, but hardly a sweeping one," says Jeffrey Winikow, a Los Angeles attorney who wrote an amicus brief on behalf of employment law plaintiffs.
The California Newspaper Publishers Association had proposed a new legal test that would allow trial court judges to dismiss sexual harassment claims at an early stage of litigation.
Where an employer’s product is protected by the First Amendment, it said in an amicus brief, a claim should not be actionable as a matter of law if the challenged speech "arose in the context of the creative and/or editorial process, and it was not directed at or about the plaintiff."
Justice Ming W. Chin endorsed that approach in a concurring opinion, saying that lawsuits like Lyle’s, "directed at restricting the creative process in a workplace whose very business is speech-related, present a clear and present danger to fundamental free speech rights." The other six justices, however, declined to address the First Amendment issue.
The court "did not announce a new principle of law in the creative workplace," notes Elizabeth Kristen, staff attorney for the Legal Aid Society-Employment Law Center in San Francisco, which also participated in the case on behalf of employees.
But Levin still insists the decision "goes a long way toward clarifying some confusion among courts of appeal as to what needs to be done" to substantiate a sexual harassment claim.
And Winikow concedes that some judges may now be more confident about granting summary judgment "when the issue is nothing more than sex talk."