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.