As sexual harassment has become a major topic of discussion and action in our industry, the Guild stands ready to be your adviser and advocate. Harassment has never been okay, yet it has been tolerated and ignored. That time is over. While the Guild explores other things the community of writers can do collectively, we can answer a number of questions that have been raised in many of our discussions recently. Call us if you have a question not answered below.
1. Can the Guild help me if I have questions about sexual harassment or wish to file a complaint?
Yes. If you wish to bring a sexual harassment claim, or if you merely wish to have a confidential discussion with an experienced Guild representative about your situation, including if you’d like a representative to accompany you to file a complaint, please call Latifah Salom at (323) 782-4521, email Latifah Salom or the WGAW Legal Services Department.
The Guild can also assist you if your employer wishes to interview you regarding allegations of sexual harassment. The question of whether you need or have a right to representation during such an interview depends on the facts of the case. But we urge you to call the Guild before you submit to the interview if you have any questions or concerns. The Legal Services Department will provide you with immediate access to someone who can assist you.
2. What is sexual harassment?
Sexual harassment has a legal definition narrower than how the term is used in the broader societal conversation. The doctrine of sexual harassment is an aspect of employment discrimination law, applicable generally to individuals in a workplace.
- What laws prohibit harassment?
Title VII of the Civil Rights Act of 1964 (Title VII) is the federal law that prohibits sexual harassment. In California, harassment is also prohibited under the state discrimination statute, the Fair Employment and Housing Act (FEHA). Each statute creates an administrative agency with investigative and enforcement authority. The Equal Employment Opportunity Commission (EEOC) enforces Title VII. The California Department of Fair Employment and Housing (DFEH) administers FEHA.
- Who is covered?
California law prohibits harassment of a broad range of individuals in the workplace, including employees, job applicants, unpaid interns or non-employees providing services under a contract. These provisions apply to all employers regardless of size, as well as to labor unions and talent agencies.
The coverage of Title VII is somewhat narrower, applying generally to employees and job applicants of employers having 15 or more employees.
- What types of conduct are prohibited?
While most harassment cases involve sex discrimination, it is illegal to harass or discriminate against an individual on the basis of membership in any protected class: gender, race or ethnicity, color, creed, national, origin, alien or citizenship status, age, disability, sexual orientation or marital status.
There are two types of sexual harassment claims:
- Quid pro quo sexual harassment occurs when someone demands sexual favors in exchange for favorable employment conditions or opportunities, or to avoid adverse employment actions.
- Hostile work environment sexual harassment occurs when unwelcome comments or conduct based on sex unreasonably interfere with an employee’s work performance, or create an intimidating, hostile or offensive work environment.
- What remedies are available under the discrimination laws?
Legal remedies for sexual harassment include compensatory damages for lost wages and emotional distress, punitive damages, reinstatement or promotion, and injunctions (i.e., court orders) requiring changes in the policies or practices of the employer.
- Are there time limits for filing claims?
The statute of limitations under California law is one year from the last act of harassment. The statute of limitations under Title VII is 180 days, which in California is extended to 300 days. The statute of limitations stops running when the employee files a complaint with the relevant administrative agency—either the EEOC or the DFEH. The filing of an administrative complaint is a relatively simple task that can be accomplished online or by phone, without the assistance of an attorney.
- Can an employer punish someone for complaining about harassment?
No. Both federal and state law broadly prohibit an employer from retaliating against any person (whether or not an employee) for making a harassment complaint, assisting another person in making a complaint, testifying or otherwise participating in a harassment investigation. The statutes prohibit all forms of retaliation, from threats and negative performance reviews to termination or non-renewal of employment. Retaliation is a separate violation, even if the underlying complaint is disproved or found to lack merit.
3. What are an employer’s obligations under sexual harassment law?
An employer has the obligation to provide a workplace free of sexual harassment, and to take appropriate remedial action if it becomes aware of violations. The following rules apply to employers in carrying out this obligation:
- An employer is strictly responsible for the actions of company owners and agents, including supervisors.
- An employer may be responsible for the actions of non-supervisory employees or even non-employees (such as customers or visitors in the workplace) if it had reason to be aware of the conduct but failed to take steps to prevent it.
- An employer has an affirmative duty to investigate sexual harassment if it has reason to believe it has occurred, even in the absence of a formal complaint.
- A new law in California requires that certain larger employers—those with 50+ employees—provide sexual harassment training to their supervisory employees.
4. What other laws prohibit sexual misconduct?
Sexual misconduct may violate other laws apart from the employment discrimination statutes. State criminal law generally recognizes the crimes of rape, attempted rape and sexual assault. In addition to claims for sexual harassment, state law may provide civil causes of action for sexual battery and intentional infliction of emotional distress.
5. Does harassment violate the Guild’s the collective bargaining agreements?
Yes. Article 38 of the Writers Guild Theatrical and Television Basic Agreement (“MBA”) is a broad anti-discrimination provision: “[t]he parties to this Basic Agreement agree that, to the extent provided by applicable federal and state statutes only, there shall be no discrimination due to sex, age, race, religion, sexual orientation, marital status, gender identity, color, creed, national origin or disability.” There is a caveat, however. MBA Article 38(G) excludes discrimination claims (including harassment claims) from the MBA’s grievance and arbitration procedure, so any enforcement action would have to be brought by the Guild in court.
The WGA-CBS Staff News Writer Agreement contains a similar no discrimination provision.
6. The “Friends” decision.
Many writers are aware of a high profile California Supreme Court decision, Lyle v. Warner Bros. Television, 38 Cal. 4th 264 (2006), which dealt with the application of sexual harassment laws in the writers’ room of a network television series.
What was the case about? Plaintiff was a writers’ assistant employed on the series Friends. Prior to being hired, plaintiff was warned that she would be exposed in the writers’ room to discussion about sex and “sexual jokes,” and that she would be required to transcribe portions of that discussion as part of her job. After four months on the job, plaintiff was fired because of problems with the quality of her work. She later sued, alleging that during her time on the show she had been exposed to a “hostile work environment” in violation of California’s statute prohibiting sexual harassment.
How did the case get to the Supreme Court? The case was dismissed in superior court on summary judgment, without a trial. At the first level of appeal, the court reversed the dismissal and sent the case back for a trial. The initial decision on appeal contained language suggesting that “sex talk” in the writers’ room was not protected speech because it “not necessary” to the creative process. It was this language that attracted the attention of organizations, including the WGAW and a number of newspaper and book publishing groups, who argued that the First Amendment does not allow the government to dictate the content of a writer’s creative process. At the urging of these groups and others, the Supreme Court agreed to hear the case.
What did the Supreme Court decide? The Supreme Court reinstated the dismissal of the cases, holding that the plaintiff had not produced sufficient evidence to go to trial. In reaching that conclusion, the court discussed what it takes to establish a claim for “hostile work environment” sexual harassment. The court’s decision rested on two key findings:
- First, plaintiff did not show or even contend that any of the sexual jokes or innuendo were directed to her, or singled her out personally.
- Second, in the absence of conduct or comments directed to her, plaintiff was required to show sexist or misogynistic speech or behavior so “pervasive” as to be “destructive” of the work environment. Looking at the specific facts of the case before it, the court held that plaintiff had not met that burden.
The decision ducked the free speech issue, though a concurring opinion authored by Justice Chin talks about the First Amendment’s protection of a writer’s creative process.
What is the Friends case NOT about? The court’s decision is highly fact specific, and there are a few things we can say with certainty that it is not about:
- It does not address so-called quid pro quo harassment, where an employee is offered benefits or favorable treatment in return for sex.
- It says nothing about a hostile work environment created by physical touching.
- It specifically distinguishes and does not discuss cases involving written or oral expression that singles out or is directed to the victim.
- It in no way suggests that sexual harassment can’t take place in a writers’ room.