Law school will ruin your life in so many ways.
I used to watch television in a state of blissful ignorance. Holes in the plot? Didn’t notice. Inconsistent character behavior week to week? Didn’t care. Offensive, sexually charged dialogue? Didn’t mind at all.
Then I became a lawyer, and now my clients are employers who do mind that last kind of thing when it happens in their conference rooms, around their water coolers, or wherever else their employees congregate to ogle one another. Sexual harassment is a serious thing, the public loves salacious stories, and juries love to punish the wallets of companies that permit drooling, predatory managers to roam the hallways. When the boss whispers all sorts of naughty things to his secretary, it’s a lawsuit. When he does it on my Sony HD during prime time, it’s entertainment!
The employment lawyer in me wondered whether the people who lounge about in television writers rooms cranking out this content—and thus are immersed in it on a daily basis—ever stop and say, “Hey, this stuff is offensive, and I feel harassed on the basis of my sex,” or something to that effect. Turns out, those kinds of cases exist.
In 1999, a female writing assistant for the show Friends sued Warner Brothers, NBC, and a number of individuals for sexual harassment based on the NC-17 level of banter among the male writers. By the way, if you are too young to remember Friends, it’s the show that made a lot of people start irrationally caring whether Jennifer Aniston was married, pregnant, or wearing bangs. Anyhow, this is a blog for professionals, so I will refrain from reviewing the allegations in detail. Just imagine a frat house that’s been sealed tight for a week, when suddenly a young coed is dropped into the common room. The case went all the way to the California Supreme Court (link here, you’re welcome) where it was dismissed. The court’s reasoning highlights the importance of context in determining whether a plaintiff has been harassed.
The laws prohibiting sexual harassment on the job are not meant to be civility codes. The conduct has to be severe and pervasive enough to quite literally affect someone’s ability to function in the workplace. And the type of workplace can be important. As the court pointed out, Friends was “a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes.” In other words, you cannot say “bitch” and make vulgar hand motions in your office. But this same behavior can be part of the creative process for those who write content for shows you and I probably enjoy.
So the next time you’re watching Mad Men, Californication, or reruns of Don’t Trust the B in Apt. 23 (canceled?! but how?), spare no thought for the writing staff exposed to such smut. Enjoy every f-bomb, c-word, and middle finger guilt-free. Bliss.