Lessons From Friends

David Adelman
As a lawyer, I view the world through glasses that are different than those worn by most others. They are certainly not rose-colored. There's not a day that goes by that I don't eat something, watch something or drive by something that reminds me of some monumental court case or important legal theory. It is both a blessing and a curse. It certainly prevents me from enjoying many things at face value. But sometimes it adds a really interesting dimension. Such is the case with the recent California Supreme Court decision Lyle vs. Warner Bros. Television Productions. After reading the case, I will never again be able to watch an episode of the hit TV sitcom "Friends" without thinking of what went on way behind the scenes.

Amaani Lyle worked on "Friends" as a comedy writers' assistant. Her job was to sit in on creative meetings and take detailed notes for the writers as they plotted out potential story lines. She was fired after four months because of her poor typing and transcription skills. She then sued Warner Bros. (her former employer) and several of the show's writers on a host of employment-related theories, one being sexual harassment stemming from the sexually coarse language and vulgar behavior to which she was repeatedly subjected to during these creative meetings. Problem With 'Friends'
If you've ever watched the hit 1960s TV sitcom "The Dick Van Dyke Show," you'll remember just how zany a think tank of comedy writers can be. With their rapid-fire one-liners and outrageous pratfalls, Rob, Buddy and Sally were constantly pushing the comedic envelope with their bits for "The Alan Brady Show." Fast-forward 30 years to "Friends" — a much racier show with, apparently, a much racier stable of comedy writers.

According to Lyle, during their creative meetings the writers would regularly discuss their personal sexual preferences and experiences, frequently focusing on oral sex, anal sex, big breasts, young girls and cheerleaders. She testified that the writers also would regularly discuss the actresses on "Friends" — which ones they'd want to have sex with, which ones they'd had an opportunity to have sex with but didn't, which sexual acts they'd like to perform on which ones, and which sexual acts were probably performed on them by their boyfriends. She also described the writers' frequent masturbatory gestures, their constant "schlong" references and the masturbatory sounds they would make by banging on the bottoms of their desks. Finally, she spoke of a coloring book which belonged to the writers featuring various cheerleaders with their legs spread wide open on which they would draw exposed breasts and vaginas, and copies of scripts in which they would alter certain words — "happiness" to "penis" and "persistence" to "pert tits" — all of which were frequently left open on a table for the world to see. The writers' alleged antics were described by Lyle and recounted in the court's opinion in graphic detail (e.g., "[One writer] said that [one actress's] pussy was full of dried up twigs and that if her husband put his dick in her she'd break in two").

Notwithstanding the sexually graphic picture painted by Lyle, she admitted two facts that would turn out to be of critical importance to the court in its consideration of the case. First, she admitted that none of the writers' alleged sexual comments, gestures or writings had been directed towards her. Second, she admitted that she had been warned in advance of starting her job that she would encounter graphic sexual humor. More on these points later.

Of course, the writers denied many of Lyle's allegations. However, they also argued that "Friends," a show about sexually adventurous thirty-somethings, regularly featured sexual and anatomical humor, innuendo, wordplay and gestures to convey humor. Accordingly, they claimed that they needed to engage in realistic discussions of sex in order to write convincing and humorous scripts for the show.

Ultimately, the court ruled against Lyle on her sexual harassment claim. Understanding the precise nature of her claim is important. Hers was not a claim based upon the fact that her employment and its benefits were conditioned on her submitting to or tolerating unwelcome sexual advances. Rather, hers was a claim based upon the fact that her work environment was hostile and abusive on the basis of sex. While the court noted that California law certainly prohibits the creation of such a work environment, it held that the mere discussion of sex or use of vulgar language does not, by itself, necessarily support a valid claim of hostile environment sexual harassment. The court held that "[a] hostile work environment sexual harassment claim is not established where a supervisor or co-worker simply uses crude or inappropriate language in front of employees or draws a vulgar picture, without directing sexual innuendos or gender-related language toward [a particular woman] or women in general" and that the laws against discrimination and harassment do not constitute a "civility code . . . designed to rid the workplace of vulgarity." Further, the court noted, "while [California law] prohibits harassing conduct that creates a work environment that is hostile or abusive on the basis of sex, it does not outlaw sexually course and vulgar language or conduct that merely offends."

Key Ruling
Although decided under California law, the Friends decision is an important and beneficial precedent for all employers, especially those of us who work in the adult entertainment industry or provide goods or services to the adult entertainment industry.

In the end, the court affirmed that legal liability for hostile environment sexual harassment should not be imposed on an employer merely as a result of sexual jokes and banter in the workplace, where such conduct is not aimed at or designed to degrade a particular employee or a group of employees within a protected class. With this affirmation, the court raised the bar for potential claimants, who should now have to prove that they were the specific targets of the allegedly offensive behavior. Theoretically, this should reduce the number of possible claims or make such claims more difficult to prosecute.

However, employers in the adult entertainment industry and in businesses that provide related goods and services cannot develop a false sense of security, feeling confident that the "Friends" decision will now provide a shield against all hostile environment sexual harassment claims. Why should we worry, you say? Didn't the court scrutinize some very egregious and offensive conduct and still side with the employer? Well, yes, it did. However, in its concluding remarks, the court cautioned (without giving specifics) that there are circumstances under which the use of sexually coarse and vulgar language in the workplace can constitute sexual harassment and that all sexual harassment claims should be evaluated in their context. In doing so, the court left the door open for future courts to find hostile environment sexual harassment under the right circumstances.

So, for those of us who are employers in the adult entertainment industry and in businesses which provide related goods and services, what can be done to minimize our exposure to other potential Lyles who may be or will be working for us? First and foremost, if you have not done so already, I recommend you develop a policy and put in place a program to deal with the issue of sexual harassment in the workplace. This should include drafting or updating your employment-related documents (e.g., your employment handbook) so that they address the issue, educating management on the issue and making them aware of what they should be looking for, and providing a non-threatening mechanism through which employees can bring this issue to the attention of management before the situation spirals out of control.

I also recommend that you attempt to have your existing employees, and require that each of your new employees, sign a short written acknowledgment stating that they understand they are working in an environment where they will be exposed on a daily basis to explicit sexual language and materials, that they do not find such to be offensive, and that they agree to bring any concerns in this regard to the attention of management.

Written acknowledgments, workplace policies and educated management will likely be important considerations if an employer is forced to defend an action for hostile environment sexual harassment.

David Adelman is a partner in the Encino-based law firm Greenberg & Bass LLP. He can be reached at (818) 382-6200.

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