Letter to the editor

Last week, the California Supreme Court delivered its much-anticipated opinion in Amaani Lyle v. Warner Bros., unanimously finding that plaintiff Lyle, a former writers’ assistant on the sixth season of “Friends,” could not allege sexual harassment against any of the “Friends” writers for sexual discussions in the writers’ room during script development.

Although not explicit in the decision, this ruling resolves the struggle between preventing harassment in the workplace and allowing speech to flow unfettered in academic and creative settings.

Speech is the apparent victor in that struggle: The import of the court’s ruling is that an employee cannot encumber creative speech — something that we all benefit from — merely because he or she is personally offended by it.

Here are the basics of the case: Lyle was hired as an assistant to transcribe the ideas tossed around in the “Friends” writers’ room. Her role was to be passive — she was not to contribute to script development or any of the discussions, but merely type them into a computer. She was familiar with the show and well aware of its sexual themes. In fact, the production warned her, upon hire, that the discussions were frequently explicit and graphic.

Turns out that Lyle could not type fast enough and the production let her go. Lyle sued for sexual harassment based on the banter in the writers’ room. During discovery, it was confirmed that Lyle never complained about the discussions. Most significantly, she admitted during her deposition that the writers did not direct any of the comments at her personally but rather she was offended by the discussions of sex in general. The lower court found this last fact to be dispositive.

Disagreeing with this calculus, the California Court of Appeal reserved, ruling that Lyle should have her day in court and it was for a jury to decide whether the conduct in the writers’ room gave rise to a harassment claim. This ruling sent a cautionary message to productions: Taboo or controversial discussions, even if they were squarely related to the job at issue, were fodder for discrimination and harassment claims. These topics, no matter how central to the creative process, were off-limits.

The legal battle ensued through the appeals process. Warner Bros. took up the issue with the California Supreme Court and argued that the graphic discussions in the writers’ room were not intended to harass Lyle but rather to develop a script; therefore, these discussions should never be used to form the basis for a harassment suit. The Supreme Court agreed that the conduct was not actionable and reversed the Court of Appeal, holding that the banter at issue was not because of Lyle’s gender and, therefore, it did not constitute sexual harassment. As the court aptly pointed out, male and females alike were required to sit through discussions as part of the job. Moreover, it was not “severe” or “pervasive” given that the “Friends” series was known to address sexual themes.

Although predicated on the nuts and bolts of harassment law, the decision has broad implications for speech in academic or creative settings. The ruling of the Court of Appeal effectively gave an employee “veto” power over the vetting of and intercourse on controversial topics by allowing a claim to be brought for hostile work environment harassment for conduct not specifically directed at the claimant. This would potentially hinder the creative process.

If the Supreme Court went the other way, for example, a museum security guard at a Robert Mapplethorpe exhibit might be able to shut down the show if he or she felt personally uncomfortable about the topics of race or sexuality. The same would be true of a participant in a classroom discussion or an observer of a theatrical production. Allowing an individual even to initiate a claim under these scenarios would require institutions to be cautious with speech preemptively — thereby chilling it. The end result is a loss in creative and intellectual product.

Indeed, evidence from Lyle itself illustrates this point. One of the writers on the production, in an effort to come up with a storyline, recounted a night in a bar where he met a woman who performed oral sex on him, only to discover, after the fact, that she was actually a he. This retelling resulted in a much-neutered episode where a character meets a woman in a dark bar, makes out with her and afterward learns that she is in fact a man. But for the writer’s frank discussion, this storyline may have never come about.

However, even if an actual storyline was not developed, Lyle should not be able to take her case to a jury, because broad discussions are necessary to the creative process. One story or idea might lead to another, which leads to another, which leads to an idea that could be used in a final script.

This is not to say, however, that an employee working in an academic or creative setting should never be able to state a claim for harassment. When demeaning or degrading comments are directed at an employee based on a protected characteristic, they should give rise to a harassment claim — and the California Supreme Court’s decision allows for just such a cause of action. The allegations in Lyle are nowhere analogous to the stereotypical example of a hostile work environment: a shipyard with a culture of sexism where the comments and conduct have nothing to do with work product. In this situation, an employee, tired of the day-to-day severe and pervasive conduct that is not job-related, should be able to state a claim, even if those comments are not directed at him or her.

Lyle is distinguishable precisely because the comments in the writers’ room were job-related. The court’s decision deftly balances the need to protect victims of harassment while at the same time permitting the free flow of speech in the creative context.

Robert J. Schulze

Fox attorney

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