April 21, 2006

Assistant loses “Friends” sex harassment case

By Jesse Hiestand

LOS ANGELES (Hollywood Reporter) - In a closely watched
workplace speech case, the California Supreme Court unanimously
ruled Thursday that the sexual banter among writers on the hit
series "Friends" did not violate the rights of a writers'
assistant who sued for harassment.

The 7-0 decision by the high court marked the end of Amaani
Lyle's lawsuit, which was filed after she was fired in October
1999 over the quality of her transcription skills.

Warner Bros. Television Production and the other defendants
-- NBC Studios, Bright/Kauffman/Crane Prods. and
writer-producers Adam Chase, Gregory Malins and Andrew Reich --
asserted First Amendment rights to free speech, but the
justices did not need to consider what essentially was their
second line of defense. The high court instead threw it out on
the grounds that Lyle's claims did not amount to harassment
under California law.

"The record discloses that most of the sexually coarse and
vulgar language at issue did not involve and was not aimed at
plaintiff or other women in the workplace," according to the
48-page opinion.

Looking at all the facts, including the fact that "Friends"
involved "a creative workplace focused on generating scripts
for an adult-oriented comedy show featuring sexual themes," the
justices said that no "reasonable" judge or jury would find
that the language constituted harassment or created a hostile

As a result, the justices upheld the trial court's decision
to throw out the case on summary judgment and ordered the Court
of Appeal to reverse its position that Lyle had a case worth
taking to trial.

"Now our clients can continue doing what they do best --
writing and producing hit television shows with the knowledge
that their speech is protected," defense attorney Adam Levin of
Mitchell Silberberg & Knupp said. "The court found that the
speech which the plaintiff was challenging was not directed at
her and did not concern her. Quite simply, she was complaining
about the back-and-forth sexual discussions of male and female
writers on an adult situation comedy."

Levin said the defendants said they might seek to recover
their costs, now considerably more than the $450,000 awarded to
them by the trial court.

"This decision is utterly appalling and absurd in my
opinion," Lyle attorney Mark Weidmann said. "It really sets
women back a long way in the workplace and, frankly, isn't
helpful for men, either, because I don't think they should be
subject to sexual harassment, either."

Since filing the suit, Lyle has enlisted in the U.S. Air
Force and was not available for comment Thursday because she
was in Germany, Weidmann said.

Weidmann also took issue with the notion that the speech
was acceptable because it was an integral part of creating
"Friends." "'Friends' is a family show at a family hour, and I
have rarely seen much about sex in there, and what I have seen
are oblique references. None of the conduct we were complaining
about was ever on that show, and it wouldn't be allowed on
television," he said.

A wide range of groups filed briefs supporting Warner
Bros.' position, from the Motion Picture Assn. of America, the
Alliance of Motion Picture & Television Producers, and the
directors, writers and screen actors guilds, to dozens of
veteran Hollywood writers, publishers' associations and
newspaper groups.

Employment law attorney Barry Kellman of Greenberg Glusker
said the Lyle decision will have an impact on all those whose
work involves creative problem-solving.

"The ability of the 'right brain' to engage in intuitive,
holistic processing is severely impaired when the 'left brain'
must unduly occupy itself with censorship concerns," Kellman
said. "In rejecting the plaintiff's position by a vote of 7-0,
the justices have sent a strong message that the important
legal prohibition against harassment does not create an
unrestricted invitation to the judicial system to meddle in the
artistic process."

Proskauer Rose labor and employment attorney Anthony Oncidi
said the case could have national implications because the
California Supreme Court has issued few opinions on sexual
harassment law.

Oncidi said it was the first time the court had
specifically said that sexual statements and activity in the
workplace, when not directed at an employee or a class of
employees, does not create a liability.

"The court also took into account the kind of workplace it
is," Oncidi said. "Here the court recognized that different
workplaces have different needs and requirements, and certainly
in an entertainment (industry) environment like this it was not
an inappropriate use of those thoughts, ideas and material."

Justice Ming Chin added a separate opinion to the decision,
saying he believed the speech in this case would have been
protected by the First Amendment and similar language in
California's Constitution.

"This case has very little to do with sexual harassment and
very much to do with core First Amendment free speech rights,"
Chin said. "The writers of the television show, 'Friends,' were
engaged in a creative process -- writing adult comedy -- when
the alleged harassing conduct occurred. The First Amendment
protects creativity."

According to the court, Malins and Chase warned Lyle during
her June 1999 job interview that the show dealt with sexual
matters and that the writers told sexual jokes and engaged in
discussions about sex. "Plaintiff responded that sexual
discussions and jokes did not make her uncomfortable, and she
subsequently was hired as a writers' assistant," according to
the decision.

It was Lyle's job to listen to the jokes and document them
for potential use in scripts. She was fired after four months
because of problems with her typing and transcription skills,
the court said.

"In reaching this conclusion, we do not suggest the use of
sexually coarse and vulgar language in the workplace can never
constitute harassment because of sex," the justices said. "Nor
do we imply that employees generally should be free, without
employer restriction, to engage in sexually coarse and vulgar
language or conduct at the workplace. We simply recognize that
(the state's harassment law) is not designed to rid the
workplace of vulgarity."

Reuters/Hollywood Reporter