Employment Law Advisory Bulletin
Free Speech has “Friends” at the California Supreme Court
By John P. LeCrone and Rochelle L. Wilcox
[May 2006]
The California Supreme Court issued its highly-anticipated decision in Lyle v. Warner Brothers Television Productions on April 20, 2006. In a victory for employers, a unanimous Supreme Court held that sexually coarse and vulgar language in the workplace does not give rise to a claim for sexual harassment, where the language is not aimed at a particular employee and is part of a “creative workplace.” The case involved a writers’ assistant on the production of the popular television show Friends who was fired after four months on the job because of problems with her typing and transcription. Lyle subsequently filed suit, alleging that the writers’ use of sexually suggestive and vulgar language during script meetings constituted sexual harassment in violation of California’s Fair Employment and Housing Act (the FEHA).
The case sent tremors through the entertainment industry and indeed all employers in California in April 2004, when the Court of Appeal held that Warner Brothers Television Productions, which produced the popular television program, and three of the program’s writers could be held liable for “hostile environment sexual harassment” based on the writers’ explicit jokes and script discussions about sex. The Supreme Court granted review of the decision in order to address the following two issues:
(1) Can the use of sexually coarse and vulgar language in a creative workplace constitute harassment based on sex within the meaning of FEHA?
(2) Does the imposition of liability for sexual harassment based on such speech infringe on the rights of free speech?
No Hostile Environment Sexual Harassment
Ultimately, the Supreme Court answered only the first question, relying entirely on FEHA to resolve the case in defendants’ favor. The Court ruled that Lyle was not harassed “because of … sex,” as required to establish a sexual harassment claim, because of the context in which the alleged harassment occurred. Relying on a U.S. Supreme Court decision in Oncale v. Sundowner Offshore Srvcs., Inc., 523 U.S. 75 (1998), the Court reiterated that to establish hostile environment sexual harassment, Lyle must establish “she was subjected to sexual advances, conduct or comments that were (1) unwelcome …; (2) because of sex …; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment,” and also that the conduct was attributable to her employer. “[I]t 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.” Vulgar or coarse language alone, said the Court, particularly in a creative environment featuring sexual themes and content, does not give rise to a sexual harassment claim.
The Supreme Court also held that the alleged conduct—even though sexually vulgar—was not “severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment.” The Court emphasized that the inquiry regarding whether alleged harassment is sufficiently severe to be actionable “requires careful consideration of the social context in which particular behavior occurs and is experienced.” In so doing, the Court considered and rejected Lyle’s claim that a few comments from the writers that were directed at particular women were actionable, finding that they were not severe or pervasive enough to alter Lyle’s working conditions. The Court also explained that “when a plaintiff cannot point to a loss of tangible job benefits, she must make a commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment.” (Citation, internal quotes omitted.) The Court concluded that while in some circumstances an employee might be able to state a claim based on sexually harassing conduct directed toward others, an employee could do so only by meeting a high threshold and establishing that the comments “permeated” the “direct work environment.” Lyle could not meet this high test. Said the Court:
Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA.
Free Speech Rights in the Workplace
The Court did not need to reach the second question—whether imposition of liability would have offended the writers’ First Amendment rights of free speech and expression. By resolving the first issue in defendants’ favor and emphasizing the context in which the discussions occurred, the Court in effect protected the free speech rights of the writers and others whose businesses are the creation or dissemination of works protected by the First Amendment. Moreover, resolving the case on FEHA grounds—rather than on the basis of the First Amendment—provides more protection to California’s employers outside of the somewhat unique context of this case. The general principles adopted by the majority can be applied in all workplaces. However, given the Court’s reliance on the context of the workplace to support its decision, other workplaces, whose products are not speech-related, may not receive the level of protection afforded defendants in this case.
Justice Chin wrote a concurring opinion emphasizing the importance of the First Amendment to protect defendants’ speech. He explained that “[t]his case has very little to do with sexual harassment and very much to do with core First Amendment free speech rights.” The First Amendment protects expression and those persons engaged in the creative process. Thus, “[w]hen, as here, the workplace product is the creative expression itself, free speech rights are paramount. The Friends writers were not renting cars and talking about sex on the side. They were writing adult comedy; sexual repartee was an integral part of the process.” Justice Chin emphasized his belief that free speech rights are placed in “clear and present danger” when the process by which the speech is created is challenged. Thus, Justice Chin explained:
I agree with the general test proposed in the amicus curiae brief of the California Newspaper Publishers Association et al.: “Where, as here, an employer’s product is protected by the First Amendment—whether it be a television program, a newspaper, a book, or any other similar work—the challenged speech should not be actionable if the court finds that the speech arose in the context of the creative and/or editorial process, and it was not directed at or about the plaintiff."
Justice Chin explained that this test presents the proper balance because “in the creative context, free speech is critical while the competing interest—protecting employees involved in the creative process against offensive language and conduct not directed at them—is, in comparison, minimal."
Lessons Learned
The decision by the California Supreme Court in Lyle is good news for employers. Among other things, the Court reiterated that “the FEHA is not a civility code and is not designed to rid the workplace of vulgarity.” Nonetheless, this decision does not mean that sexually suggestive language in the workplace is allowed carte blanche. Employers should remain vigilant in preventing sexually suggestive language and conduct, and taking quick and appropriate corrective action when it does occur.
Employers whose businesses involve the creation of works protected by the First Amendment will have more freedom for speech that occurs during the creative process. The Court’s repeated discussion of the context in which the speech in this case arose, and its emphasis on the advance warning given to Plaintiff that she might be subjected to sexually-suggestive speech, suggests that these employers may have more leeway in the speech permitted in the workplace than employers whose products are not protected by the First Amendment. Yet, these employers also must be vigilant to ensure that their speech does not fall within FEHA’s prohibitions.
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This Advisory is a publication of the Employer Services Department of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in employment law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.
Copyright © 2006, Davis Wright Tremaine LLP.
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