Vulgar Language Between Friends Not Always Sexual Harassment

On April 20, 2006, the California Supreme Court ruled that the use of sexually coarse and vulgar language in the workplace “is not necessarily sufficient” to establish an actionable, hostile environment. However, the Court's decision in Lyle v. Warner Brothers Television Productions, also cautions that “language similar to that at issue here might well establish actionable harassment depending on the circumstances.” The decision is helpful to employers because it emphasizes the employee's obligation in a sexual harassment lawsuit to prove that the offensive conduct was both “severe and pervasive” and “because of” the employee's sex.

Plaintiff Amaani Lyle worked for four months as a comedy writer's assistant on the production of the television show Friends. Her job involved transcribing discussions amongst the writers of the show. Before she was hired, she was told that the show dealt with sexual matters and that she would be listening to jokes and discussions about sex. She responded that sexual discussions and jokes did not make her uncomfortable. Nonetheless, the lawsuit she brought after her termination for poor performance complained of profanity, jokes, anatomical sketches, crude gestures, and commentary about personal sexual experiences at work.

In ruling that Lyle could not state a claim for environmental harassment, the Court noted that the “critical issue” in determining whether offensive conduct is “because of” sex, is not its sexual content, but rather, whether one sex is exposed to disadvantages in employment to which members of the other sex are not exposed. Significantly, Lyle never claimed that she was subjected to sexual advances, or even that the offensive conduct was directed at her personally. She said that male writers on the show made sexual comments about the actresses on the show and discussed a missed sexual opportunity with one of them, but the actresses themselves were not privy to the talk and she heard no similar comments about herself. Because the comments were allegedly made only once or twice, they were not sufficiently “severe and pervasive” to be “sexual harassment.” Likewise, although the male writers occasionally referred to women who displeased them with gender-specific profanity, there was no indication that the Plaintiff was ever referred to in such terms. The fact that the case involved a “creative workplace” involving an adult television show weighed heavily in the employer's favor, as did the fact that women writers on the show discussed sexual experiences as freely as their male counterparts.

A majority of the Court also said that where the product of a workplace is creative expression protected by the free speech provisions of the First Amendment, a plaintiff must allege that the offending conduct was pervasive and directed at the Plaintiff. Any employer whose business routinely involves potentially offensive words and gestures should warn employees about it and should insist on a prompt report if an employee believes offensive comments were directed specifically toward her or him.

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