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Employers Group's Legal Committee is at Work for you
The Daily Labor Report, in a March 2, 2005 article headlined “Amici in ‘Friends’ Case Present Views Regarding ‘Creative Necessity’ Defense,” reported that Employers Group, along with other employer representatives, filed briefs on February 16, 2005 with the California Supreme Court on behalf of the employer defendants in the sexual harassment case of Lyle v. Warner Bros. Television Prods, regarding the creative necessity defense.
The briefs on behalf of the plaintiff employee is presented first in this article, and the section that reports Employers Group’s brief is in the second half of The Daily Labor Report article below:
Sexual Harassment
Amici in 'Friends' Case Present Views
Regarding 'Creative Necessity' Defense
Employment rights groups, free speech advocates, and other interested parties debate the legal and logical bases for recognizing a "creative necessity" defense to claims of sexual harassment under California's Fair Employment and Housing Act in briefs recently filed with the state supreme court (Lyle v. Warner Bros. Television Prods., Cal., No. S125171, amicus briefs filed 2/16/05).
The case is before the state justices on appeal from the California Court of Appeal. The appeals court revived certain FEHA sexual and racial harassment claims brought by Amaani Lyle, an African American former writers' assistant on the television program "Friends," against the show's writers and producers, NBC Studios, Warner Brothers Television Productions, and Bright, Kauffman, Crane Productions.
The appeals court held, among other things, that sexual harassment can occur even if the harassers do not intend offense or direct their behavior at the plaintiff personally but that the defendants may pursue at trial their argument that the sexual banter to which Lyle was exposed was a necessary part of the show's creative process (12 Cal. Rptr. 3d 511, 93 FEP Cases 1401 (Cal. Ct.App. 2004)….
“Defendants' argument appears to be unique in the annals of sexual harassment litigation,” the appeals court wrote. “Nevertheless we find defendants' theory of 'creative necessity' has merit under the distinctive circumstances of this case and defendants are entitled to pursue their theory at trial. Defendants are not entitled to summary adjudication, however, because 'context' is only one factor to be considered in determining the existence of a hostile working environment and because there are triable issues of fact as to whether defendants' conduct was indeed necessary to the performance of their jobs.”
The appeals court dubbed the argument the “creative necessity” defense and likened it to the widely recognized "business necessity" defense. It found support for the viability of such a defense in the California Supreme Court's definition of sexual harassment as conduct of a type unnecessary to the management of the employer's business.
Both sides filed petitions for review with the California Supreme Court. On July 21, 2004, the state justices granted Lyle's petition, denied the defendants' petition, and limited the issues for review as follows:
(1) Can the use of sexually coarse and vulgar language in the workplace constitute harassment based on sex within the meaning of the Fair Employment & Housing Act (FEHA) (Gov. Code, section 12900 et seq.)?
(2) Does the potential imposition of liability under FEHA for sexual harassment based on such speech infringe on defendants' rights of free speech under the First Amendment or the state Constitution?
Amici Supporting Lyle
Amici curiae supporting Lyle include the Legal Aid Society-Employment Law Center in San Francisco and the California Employment Lawyers Association.
In its brief, which was joined by other amici, the Legal Aid Society argues that the appeals court properly ruled that the use of sexually coarse, vulgar, and demeaning language can constitute sexual harassment under FEHA even if it not is not directed at a specific employee, but the organization questions the legitimacy of the defendants' proffered “creative necessity” defense.
Lyle, the brief notes, was constantly subjected to denigrating and sexually abusive references to women, sexually explicit verbal and physical conduct regarding the sexual practices of the show's writers, drawings and displays of pornography, and trivializations of rape and sexual stalking. This behavior included referring to women as… (what follows is profane language, deleted here for sensitivity) … and base speculations about the sexual health and fertility …. one of the show's actresses, and occurred both during and outside of writing meetings for the show, it says.
The standard governing hostile environment claims under FEHA asks whether the harassment was sufficiently severe or pervasive to alter the terms or conditions of the employee’s working environment, which is determined by viewing the “totality of circumstances,” including the “workplace context” in which the harassment occurred, through the eyes of a reasonable woman, the Legal Aid Society asserts. The case law setting forth this standard makes no mention of the need for a personal attack on the employee, it argues.
“[U]nder longstanding principles applied to hostile work environment cases, the question is whether the workplace was polluted with severe or pervasive harassment that was objectively and subjectively offensive” the brief states. “No authority supports the position that only acts that are found to be ‘directed’ or “targeted'’at the plaintiff or other employees can be considered in this assessment.”
‘Newly Minted Defenses.’
The Legal Aid Society takes exception to the "newly minted defenses" to Lyle's hostile environment claim raised by the defendants. It is no defense to such a claim to allege that other women were not offended, that both men and women engaged in the harassment, or that both men and women were subjected to the same harassing conduct, it says. Moreover, there is no need for a "creative necessity" defense in sexual harassment cases because it is already accounted for by existing law, it urges.
"[W]hile courts certainly consider the type of workplace in determining whether the environment was objectively harassing, there is no ‘business necessity defense’ to harassment," the brief states. “A ‘business necessity’ or 'creative necessity' defense is directly contrary to the plain language of FEHA, to this Court's holding in [Department of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 92 FEP Cases 1712 (Cal. 2003)] and to well-established principles of sexual harassment law. While evidence about the specific context of the workplace in a sexual harassment case is properly considered as part of the totality of the circumstances, it is not a defense,” it argues.
In its brief, CELA primarily focuses on the free speech issue posited by the state justices. “While the Constitution is never entirely irrelevant when analyzing misconduct rooted in words, the First Amendment's impact on harassment law is generally no greater than in a private figure, private matter defamation case,” CELA contends. “California's constitutional interest in eliminating workplace discrimination simply trumps any arguable restraint on one's right to discuss an actress’s dried up vagina around the water cooler.” FEHA, as constructed, effectively meets those competing interests, CELA says.
Amici Supporting Defendants
The Employers Group and the California Employment Law Council filed a joint brief in support of the defendants.
“There is no such thing as victimless harassment,” the brief charges. The plain language and legislative history of FEHA, state administrative and judicial decisions, decisional law of other states, and federal case law “overwhelming" establish that proof that an employee was harassed “because of sex” is a necessary part of a sexual harassment claim, it argues.
“Despite the clear statutory language and many other indicia supporting the employer's legal position, the lower court simply glossed over the ‘because of sex’ requirement, declaring with no reasoning at all that it had 'no doubts' that the conduct occurred because of the plaintiff's sex,” the Employers Group and CELC wrote. But “[t]he plaintiff in this case is no more the victim of ‘harassment’ than any of her other ‘Friends’ co-workers, male or female, who worked in the writers’ room. There is no evidence to raise a triable issue that, had plaintiff been a man, ‘she would not have been treated in the same manner,’ they contend.
The Employers Group and CELC also take exception to the appeals court’s ruling that the defendants can assert a “creative necessity” defense at Lyle's sexual harassment trial, but do so for a different reason than the Legal Aid Society. In fashioning the defense, the appeals court erroneously switched the burden on required elements of a sexual harassment claim away from Lyle and future plaintiffs, it argues.
“[T]he appellate panel's 'creative necessity defense' conflicts with the settled rule that sexual harassment plaintiffs, like all other disparate treatment claimants, must ‘prove [] that discrimination based on sex has created a hostile work environment,’” the brief says. “As ‘context’ is part and parcel of a claim for harassment, the purported ‘creative necessity’ defense impermissibly switches the burden of proof onto employers. ... What is disturbing about this portion of the appellate opinion is that it leaves many California employers open to a claim of 'hostile environment' harassment simply because the workplace includes occasional or regular references to sexual or other offensive matters,” it argues.
Finally, the appeals court's decision raises “very real and serious” constitutional issues, the Employers Group and CELC charge. Apart from the free speech implications, “[i]f, as appears to be the case, the lower court has attempted to announce a rule that allows for imposition of compensatory and punitive damages against companies and even individual co-employees and supervisors who ‘sufficiently’ ‘offend,’ ‘humiliate,’ ‘distress’or ‘intrude’ upon their ‘victims’ ... or speak words that have some nexus but are not ‘necessary’ to their jobs ... , the court’s construction of [FEHA] runs smack into conflict with the due process right to be free from unconstitutionally vague governmental regulation,” they write.
Mark Weidmann of Los Angeles represents Lyle. Adam Levin of Mitchell Silberberg & Knupp in Los Angeles represents the defendants. Shelley A. Gregory and Elizabeth Kristen of San Francisco represent the Legal Aid Society-Employment Law Center, Asian Law Caucus, California Women's Law Center, and Equal Rights Advocates. Jeffrey K. Winikow of Los Angeles represents CELA. George S. Howard Jr. and Alicia I. Mead of Pillsbury Winthrop in San Diego and Steven Drapkin of Los Angeles represented the Employers
