Sexual Harassment –
the California
Court Reminds Us That You
Cannot Ignore the Context in which Sexual Conduct at the Workplace Occurs
If
you just read the highlights of the California Supreme Court's recent
ruling Lyle v. Warner Brothers Television Prod., 042006 CASC,
S125171 (April 2006), you might think that sexual harassment principles
have taken a leap backwards. In Lyle, the Court upheld the lower
Court's finding that the Plaintiff, Amaani Lyle,
was not the victim of sexual harassment, despite working in an environment
where sex was routinely discussed and sexually vulgar language was present.
For many, a zero-tolerance sexual harassment policy has become associated
with complete avoidance of sexual discussions and vulgar language. And,
while most workplace environments are best served by that practice, the high
court reminds us that you cannot ignore the context in which the conduct
occurs. As the Lyle
Court explains, the essence of a sexual
harassment claim is "the disparate treatment of an employee on the
basis of sex – not the mere discussion of sex or use of vulgar language at
the workplace."
But
before loosening the reigns on workplace conduct, it is important to take a
closer look at the Lyle ruling because the rules have actually not
changed. The outcome in Lyle is based primarily on the unique
context in which the sexual conduct took place. Plaintiff was employed by
Warner Brothers Television Production as a writer's assistant for the
writers of the television show Friends, a popular adult-oriented
television show. At the time of her interview, she was told that the show
she would be working on "dealt with sexual matters and, as a result,
the writers told sexual jokes and engaged in discussions about sex."
Plaintiff responded that sexual discussions and jokes did not make her
uncomfortable. She accepted the job and continued to work in that position
for approximately four months. She testified that no one ever said anything
sexually offensive about her directly, no one ever asked her out on a date
or sexually propositioned her, and no one ever demanded sexual favors of
her or physically threatened her.
Instead,
the gist of her sexual harassment claim was that a number of offensive
discussions and actions occurred in the writers' meetings she was required
to attend and on occasion, in the break room and hallways. The evidence
showed that the writers engaged in graphic discussions about their personal
sexual experiences, sexual preferences, and preferences in women, engaged
in bragging about their personal sexual exploits with girlfriends and wives
and engaged in the use of sexual antics and drawings. They also included
the writers talking about what they would like to do sexually to different
female cast members on Friends.
The
Court was persuaded that the record reflected "a workplace where comedy
writers were paid to create scripts highlighting adult-themed sexual humor
and jokes, and where members of both sexes contributed and were exposed to
the creative process spawning such humor and jokes. In this context, the
defendant writers' non-directed sexual antics and sexual talk did not
contribute to an environment in which women and men were treated
disparately. Moreover, there was nothing to suggest the defendants engaged
in this particular behavior to make plaintiff uncomfortable or self-conscious,
or to intimidate, ridicule, or insult her. . . ."
The
Court was persuaded by the evidence that the instances of sexual antics and
discussions were not aimed at plaintiff or any other female. It was further
persuaded by the evidence that the conduct occurred in group sessions with
both male and female participants present, and that female writers on the Friends
production also discussed their own sexual experiences to generate material
for the show. The Court gave significance to Plaintiff's testimony that she
was told during her interview that "the humor could get a little
lowbrow in the writers' room."
Of
course, a work environment where comedy writers were paid to create scripts
highlighting adult-themed sexual humor and jokes, and where members of both
sexes contributed and were exposed to the creative process spawning such
humor and jokes, does not describe most work environments. So, arguably,
the reach of the Lyle ruling is quite limited. As stated, the rules of
sexual harassment have actually not been altered by this recent ruling. For
example, it is not new law that to be actionable, "a sexually
objectionable environment must be both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and
one that the victim in fact did perceive to be so." (Faragher v. Boca Rato,
524 U.S. 775, 787 (1998).) As the Lyle
Court explains,
That means a plaintiff who
subjectively perceives the workplace as hostile or abusive will not prevail
. . .if a reasonable person in the plaintiff's
position, considering all the circumstances, would not share the same
perception. Likewise, a plaintiff who does not perceive the workplace as
hostile or abusive will not prevail, even if it objectively is so.
It
is also not new law that the inquiry requires careful consideration of the
social context in which particular behavior occurs and is experienced by
its target. (Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 81 (1998).) In Oncale, the United States Supreme Court
explained,
Title VII does not prohibit all
verbal or physical harassment in the workplace; it is directed only at ‘discriminat[ion]
. . . because of . . . sex.' . . ."workplace harassment, even
harassment between men and women, is [not] automatically discrimination
because of sex merely because the words used have sexual content or
connotations. . . .The critical issue . . . is whether members of one sex
are exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed. (Oncale,
523 U.S.
at 81.)
Similarly,
under the California Fair Employment and Housing Act, hostile work
environment sexual harassment claims require a Plaintiff to show that
gender is a substantial factor in the discrimination, and that if the
plaintiff "had been a man, she would not have been treated in the same
manner." (Accardi v. Superior
Court (1993) 17 Cal.App.4th 341, 348.)
The
Lyle Court
simply repeats these principles when it states "it 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." The Lyle Court further pointed out that the same type of
conduct is actionable in a different environment, distinguishing, as an
example, the case of Ocheltree v. Scollon Productions, Inc. (4th Cir. 2003) 335 F.3d,
325. In Ocheltree, a woman working at a costume
production shop was exposed to a daily stream of sexually explicit
discussions and conduct, including talk of sexual exploits with their wives
and girlfriends, the use of a female-form mannequin to demonstrate sexual
techniques, the singing of a vulgar song and the presence of a magazine
containing graphic photographs of naked men. In that case, the Court had
found that "a reasonable jury would find that much of the sex-laden
and sexist talk and conduct in the production shop was aimed at [the
plaintiff] because of sex – specifically, that the men behaved as they did
to make her uncomfortable and self-conscious as the only woman in the workplace.
(Ocheltree, 335 F.3d
at p. 333.)
Whether
or not you agree with the Lyle
Court's ruling, it nonetheless provides a
vivid illustration of a context where sexual conduct did not result in
liability for sexual harassment. While it is instructive to remember that
more than just sexual conduct is required to create sexual harassment, the
reality may be that very few environments contain the necessary context to
render such conduct permissible. And, in the end, the first time an
employer may know for sure will be when the judge or jury makes its
decision in connection with a litigated sexual harassment claim.
Our advice after Lyle,
continue to behave.
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