Yesterday the California Supreme Court decided 7-0 in favor of Warner Bros. in Lyle v. Warner Bros, a case in which a writer’s assistant on the sitcom Friends alleged that a large number of rather raunchy statements and gestures made at and outside of writer meetings amounted to the hostile work environment form of sexual harassment. The Court reversed the appeals court, holding that summary judgment was warranted in favor of Warner Bros. because no reasonable jury could find that such conversations, in the context of writing an adult themed show, were sexual harassment. The Court clearly stated that “sexually coarse or vulgar language in the workplace is not actionable per se.”
The facts as alleged depict not merely sexual banter and personal sexual stories, which would be quite clearly useful in the process of writing a sitcom like Friends, but also cruel jokes about the female actresses (but not the plaintiff), such as mocking of one of the actresses’ infertility and questioning her ability to sexually satisfy her husband. Additionally, endless mock masturbation and other relatively childish sounding antics were alleged.”
What I find interesting about this result is that it seems to undermine the fears that leftist and queer theorists have been voicing for the past few years about sexual harassment law and the resulting workplace norms. Recently, deep and urgent concerns have been voiced about sexual harassment law being used to satisfy the old-fashioned Victorian impulses of a society caught in a sex panic, needlessly fearing sexuality: Janet Halley argues that sexual harassment law can be used as a mechanism to harass gay, lesbian, and other unpopular minorities in the workplace—something she calls “Sexuality Harassment.” Vicki Schultz argues that feminists have essentially made an alliance with Taylorist management types, who use sexual harassment policies (which often go much further than the law requires) to create a “Sanitized Workplace,” in which workers are needlessly controlled and policed, the rights of workers like men of color, older men, and gays and lesbians can be run over roughshod, and the real goals of sexual integration and equality are ignored.”
I’ve found these arguments compelling, and count myself among those who generally believe that society is in a sex panic. But when a decision like the one in Lyle v. Warner Bros. comes down, not only in favor of the defendant, but unanimously so, I have to wonder if it’s the queer theorists who are panicking? Maybe the problem (in this context) isn’t sex panic and old-fashioned Victorian repression, but rather “law panic”—a needless fear of law and the state, giving rise to old-fashioned libertarian impulses? Or perhaps it’s the good work of these and other scholars that is helping to prevent sexual harassment law from becoming the complete tool of Victorian repression it could?
Posted by Gowri on April 21, 2006 at 05:30 PM
Comments
I am very familiar with the case, having convinced several amici (Individual Rights Foundation (IRF) and Center for Individual Rights, among others) to file amicus briefs in the case in support of Warner Brothers, and having contributed ideas, arguments, and citations to the IRF’s amicus brief in the case.
(IRF’s statutory construction of the California sexual harassment statute closely resembles the standard adopted by the California Supreme Court).
Thus, I am familiar with, and did not mistate, the facts of this case.
The Lyle case can be found at http://www.courtinfo.ca.gov/opinions/documents/S125171.PDF.
The 1998 Oncale decision which I cited can be found at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=96-568.
In it, the U.S. Supreme Court says, in relevant part:
“Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discriminat[ion] . . . because of . . . sex.’ We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.”
Thus, sexual content alone does not show that speech or conduct is “based on sex,” as Title VII requires for severe or pervasive conduct to constitute illegal sex-based harassment.
That would come as a surprise to many plaintiffs’ employment lawyers, but the Supreme Court said it (moreover, it did so in the context of a case where the severity or pervasiveness of the harassment was unquestioned, and only whether the harassment was “based on sex” was at issue).
Posted by: Hans Bader | Apr 25, 2006 10:12:02 AM
In my opinion “Hand Bader” have grossly mischaracterized both the facts of the case (as found by the courts) and the law. I would urge anyone who is interested to read the relevant opinions and make up their own minds.
Posted by: Ann Bartow | Apr 24, 2006 6:44:09 PM
This decision is absolutely right and a no-brainer.
Sexual harassment regulations are outgrowths of antidiscrimination law, so some showing of discrimination — not merely vulgarity, no matter how pervasive or offensive the work environment it creates — is logically required. That is what the Supreme Court said in its Oncale decision: that sexual content, even if pervasive, is not enough for liability, discrimination also has to be shown.
No matter how foul the language in this case and no matter how frequently it was used, it is clear that, as the court found, the vasy majority of the language was not aimed at the plaintiff or any other woman.
So there was no discrimination based on sex, and the plaintiff had no claim under the civil rights laws.
Too bad most plaintiffs’ employment lawyers and sexual harassment sensitivity-trainers can’t grasp this basic point.
The fact that vulgarity or sexual content is pervasive in the workplace doesn’t make it discrimination or discriminatory harassment unless the vulgarity or sexual content is aimed at some employee based on her gender.
Otherwise, it is simply bad manners, not illegal discrimination. If employers wish to ban it, they can, but they have no legal obligation to do so.
In our profane but egalitarian society, vulgar language is quite common. Employers should not be liable for this unfortunate fact, which they did not create.
Posted by: Hans Bader | Apr 24, 2006 4:52:47 PM
At the risk of sounding like I’m in favor of Victorian repression, I have trouble understanding why it is “common sense” that writers for a prime time television show had every right to explicitly, vulgarly and repeatedly talk about rape, oral and anal sex, masturbation, infertility, and sexual desire for young girls on the job, in the presence of support staff. Am I the only one who finds this at least contestable? The naked spread-eagled cheerleader coloring books onto which breast and vaginas were drawn – totally, unequivocally common sense that in this particular workplace, entirely appropriate? Without limits?
Posted by: Ann Bartow | Apr 22, 2006 9:12:53 PM
Maybe it’s just a victory for common sense: while “cruel jokes about. . . infertility and questioning [a co-worker’s] ability to sexually satisfy her husband, and. . . endless mock masturbation jokes” would be offensive in most workplaces, they fit right in in this particular workplace.
Posted by: yclipse | Apr 22, 2006 1:23:17 PM