When courts evaluate harassment claims, they take into account that work environments differ. But in a new case, a California appellate court has said a defense that sexual banter was necessary to the employer’s creative process won’t keep the employer from facing a jury.
Employee Sues for Sexual Harassment
Aamani Lyle, a writers’ assistant for the television show “Friends,” was required to keep notes of discussions among writers as they worked on jokes and dialogue for the show’s scripts. Lyle eventually sued Warner Bros., the producer of the show, for sexual harassment. She claimed the show’s writers subjected her to a barrage of offensive comments and jokes during writers’ meetings. This included sex-related jokes, pantomimed sexual acts, and disparaging remarks about women.
Employer Says Jokes Necessary to Creative Process
Warner Bros. contended that any offensive behavior during writers’ meetings wasn’t severe or pervasive enough to create a hostile work environment. What’s more, the employer argued, the banter, jokes, and comments were necessary to the creative process of developing a script for an adult-oriented comedy show about sexually active individuals.
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Harassment Claim Gets Green Lighted
A California appeals court has now ruled that Lyle can take her case to a jury. The court acknowledged that Warner Brothers’ “creative necessity” argument had merit, because a factor in determining whether offensive conduct rises to the level of a hostile work environment is the context in which the conduct occurred. But, said the court, the creative necessity defense has its limits. For example, writers’ assistants can’t be kissed, fondled, or caressed in the interests of developing a love scene between the characters. Creative necessity also wouldn’t justify lewd, offensive, or demeaning remarks directed at the writers’ assistants personally.
Thus, Warner Bros. may be able to avoid liability for harassment if it can prove to a jury that the sexual banter, lewd gestures, and other offensive conduct were within the scope of necessary job performance and not engaged in for purely personal gratification or out of meanness, bigotry, or other personal motives.
3 Prevention Tips
It remains to be seen whether a jury will accept that the conduct Lyle witnessed was necessary to the show’s creative process. But instead of leaving your organization’s fate to the courts, here are some steps that can help you avoid similar harassment claims:
- Monitor work-group behavior. If you suspect that certain groups of employees engage in potentially harassing banter, take the time to find out what is going on. Sit in on a meeting and talk to the participants.
- Put participants on notice of what constitutes unacceptable conduct. Be sure everyone understands what type of conduct is and isn’t acceptable. Inform them that just because people appear to go along with questionable behavior, that does not mean it’s permissible.
- Don’t allow intolerable behavior as part of getting the job done. Accepting employees’ excuses that crude or offensive conduct helps get everyone motivated or helps pass the time could set your organization up for a costly legal battle. Instead, encourage employees to identify practices that are both productive and nonoffensive.