Adam Levin and Gayle A. Goldman

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1 12 LABOR AND EMPLOYMENT LITIGATION IN THE ENTERTAINMENT INDUSTRIES Adam Levin and Gayle A. Goldman 12.1 Litigating Harassment Claims in Creative Work Environments introduction Unlawful harassment is one of the most frequently claimed, and most often misunderstood, legal theories in employment law. It is a legal claim potentially so broad in scope that it may cover acts as discrete as a glance and as overt as a grab. But the issue of regulating pure speech, under threat of liability for unlawful harassment, has proven to be particularly perplexing for lawyers and courts alike. The determination of liability for harassment based solely on speech is frequently based on subtle factual distinctions and arbitrary line drawing: Who were the comments directed to? What was the subject? What was the speaker s intent? Further, though often overlooked by litigants and courts, such potential liability implicates fundamental rights under the First Amendment of the U.S. Constitution, as well as many states constitutions, under which there is no recognized workplace exception to the broad free speech guarantees. Confusion regarding the proper treatment of speech is only exacerbated in the entertainment industry, where potentially offensive speech whether it be the vulgar musings of a television writer, the salacious lyrics of a song, or a titillating film-marketing campaign may be an indispensable tool of the trade. In this chapter, we will examine how the courts have attempted to interpret federal and state anti-harassment laws to avoid trampling on the constitutional rights of employers and employees. 737

2 738 Entertainment Litigation prima facie case of harassment Federal law (Title VII of the Civil Rights Act of 1964) and the laws of many states prohibit harassment because of or based upon sex, gender, race, religion, national origin, and numerous other protected bases. 1 Unlawful sexual harassment generally falls into one of two categories: (1) quid pro quo harassment, which involves a supervisor expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, and (2) hostile work environment harassment, which is defined as a work environment that is hostile or abusive on the basis of sex. 2 a. Quid Pro Quo Harassment Quid pro quo sexual harassment occurs when an employee is subject to unwelcome sexual advances by a supervisor in exchange for either an employment benefit, such as a promotion, favorable performance review, or raise, or the avoidance of an adverse employment action, such as a demotion, loss in pay, or loss of employment itself. A claim for quid pro quo harassment does not require that the sexual advances be overt, the law requires only the words or conduct [in question] would communicate to a reasonable [person] in the employee s position that such participation is a condition of employment. 3 b. Hostile Work Environment Harassment Claims of hostile work environment do not require evidence of unwanted sexual advances. 4 Rather, an employee claiming harassment based on a hostile work environment must 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1) prohibits discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s race, color, religion, sex or national origin. This mandate has been interpreted to prohibit sexual harassment. Meritor Sav. Bank v. Vinson, 477 U.S. 56, 64 (1986) ( Without question, when a supervisor sexually harasses a subordinate because of the subordinate s sex, that supervisor discriminate[s] on the basis of sex. ). California s Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice for any person to harass an employee or job applicant because of sex or other protected factors. Cal. Gov t Code 12940(j)(1). 2 Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 277 (2006). 3 Holly D. v. California Inst. of Technology, 339 F.3d 1158, 1173 (9th Cir. 2003). 4 See Lyle, 38 Cal. 4th at 278. Generally, courts have applied the similar prima facie requirements to claims of harassment on other protected bases, such as race. See, e.g., Etter v. Veriflo Corp., 67 Cal. App. 4th 457, (1998) (jury found that African-American plaintiff s claim that his supervisor had on a number of occasions called him racially derogatory names was insufficient to support FEHA harassment claim); Vasquez v. County of Los Angeles, 349 F.3d 634, (9th Cir. 2004) (finding no hostile work environment where the employee was told that he had a typical Hispanic macho attitude and that he should work in the field because Hispanics do good in the field and was yelled at in front of others); Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003) (holding that Asian plaintiff failed to establish hostile work environment despite evidence of race-based conduct such as, China man jokes, ridiculing plaintiff s pronunciation of certain words, and pulling eyes back with fingers in an attempt to imitate or mock the appearance of Asians); Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 844 (6th Cir. 2002) ( the sporadic racially-motivated misconduct by his co-workers was neither severe nor pervasive enough to create a hostile work environment. ) (internal quotation marks omitted).

3 Labor and Employment Litigation in the Entertainment Industries 739 demonstrate that he or she was subjected to advances, comments, or conduct that was (1) because of the employee s sex; (2) unwelcome; and (3) sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive work environment. 5 In addition, the employee must provide a sufficient basis for holding the employer liable for the alleged conduct. 6 Th e first element prohibiting speech or conduct that is because of sex ensures that only that which is motivated by a protected factor will be within the scope of regulation. Federal and state civil rights laws do not provide remedies for inappropriate, unprofessional, or even abusive behavior they provide remedies for discriminatory speech or conduct. 7 Indeed, some courts have held that a female plaintiff employee must show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner. 8 Second, an employee also must be able to show that the conduct in question was unwelcome. 9 Courts look at the plaintiff s own conduct, and her relationship with the alleged harasser, in determining whether she was the target of unwelcome harassment. 10 Th ird, the alleged conduct itself must be so severe or pervasive that it actually alters the conditions of the victim s employment and create[s] an abusive working environment[.] 11 The harassment must satisfy an objective and a subjective standard. The objective severity of harassment must be viewed from the perspective of a reasonable person in the plaintiff s position, considering all the circumstances, including using common sense and, importantly, 5 See Lyle, 38 Cal. 4th at 279 (citing Meritor Sav. Bank, 477 U.S. at (1986) and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, (1998)). 6 Miller v. Department of Corrections, 36 Cal. 4th 121, 130 (1999). 7 To date, no state has passed anti-bullying legislation that would create liability for nondiscriminatory abusiveness. As of the date of this publication, several states are considering anti-bullying legislation, such as New York (A04258, Reg. Sess. (N.Y )), New Jersey (A673 and S2515, 214th Legis. (N.J )), Utah (HB292, 2011 Gen. Sess.), and Illinois (SB3566, 96th Gen. Assem. (Ill ), HB0374, and HJR0040). California considered such a bill in 2003, but it died in committee. See AB 1582, Reg. Sess. (Ca ). 8 Lyle, 38 Cal. 4th at 280 (citing Accardi v. Superior Court, 17 Cal. App. 341, 348 (1993).) See also Tomkins v. Public Serv. Elec. & Gas Co., 568 F.2d 1044, 1047 n.4 (3d Cir. 1977) ( It is only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner. ) (internal citations omitted). 9 Lyle, 38 Cal. 4th at 284 (quoting Faragher v. Boca Raton, 524 U.S. 775, 787 (1998)); see Harris v. Forklift Systems, Inc., 510 U.S. 17, (1993); Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, (1998). 10 See Rieger v. Arnold, 104 Cal. App. 4th 451, (2002) (evidence of plaintiff s racy banter and sexual horseplay is relevant to show alleged harassment was welcome and/or not abusive); Tindall v. Housing Auth., 762 F. Supp. 259, 263 (W.D. Ark. 1991) (plaintiff who acted like one of the boys and freely joined in sexual jokes with the men was not offended by similar conduct); Ukarish v. Magnesium Elektron, 31 FEP 1315, 1319 (D.N.J. 1983) (a hostile environment claim failed for lack of unwelcomeness where plaintiff, although subjectively disliking vulgar language of male coworkers, appeared to accept it and joined in as one of the boys ); Hocevar v. Purdue Frederick Co., 223 F. 3d 721, (8th Cir. 2000) (supervisor s conduct not unwelcome when plaintiff used the same profanities as him). 11 Lyle, 38 Cal. 4th at 279 (quoting Harris, 510 U.S. at 21).

4 740 Entertainment Litigation examining the social context in which the alleged behavior occurred. 12 Put another way, [t]he plaintiff must prove that the defendant s conduct would have interfered with a reasonable employee s work performance and would have seriously affected the psychological wellbeing of a reasonable employee and that [he] was actually offended. 13 Whether an employee s work environment is hostile or abusive is determined by examining the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee s work performance. 14 Acts of harassment that are occasional, isolated, sporadic, or trivial are not actionable. 15 Absent conduct that is severe in the extreme, there must be a concerted pattern of harassment of a repeated, routine, or a generalized nature in order to support a claim for hostile work environment harassment vulgar speech and anti-harassment laws Many claims for harassment are founded, in whole or in part, on vulgar or offensive speech. The most challenging of these cases involve speech either directed at a group of employees of both sexes, or at no particular employee at all. It is now well established that statutory prohibitions against harassment are not intended to be civility codes and are not designed to rid the workplace of vulgarity. 17 Federal courts have consistently found not actionable an array of sexually charged speech. For example, the Seventh Circuit held that vulgar expressions like fuck me and kiss my ass are commonplace in certain circles. Such comments did not constitute unlawful harassment when used by a male warehouse employee (even when sometimes accompanied by crotch grabbing gestures) in the absence of evidence that the comments were directed at another male employee because of his gender. 18 The Second Circuit rejected a postal carrier plaintiff s sexual harassment claim regarding a display of graphic caricatures containing the name of the 12 Miller, 36 Cal. 4th at 462 (quoting Oncale, 523 U.S. at 81 82). 13 Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, (1989). 14 Harris, 510 U.S. at 23 (1993); Miller, 36 Cal. 4th at Fisher, 214 Cal. App. 3d at Lyle, 38 Cal. 4th at (citing Aguilar v. Avis Rent A Car System, Inc., 21 Cal. 4th 121, 131 (1999)). And, where a plaintiff has no evidence of a loss of a tangible employment benefit, his or her evidence must meet a heightened standard showing that the harassing conduct was pervasive and destructive of the working environment. Id. 17 See, e.g., Sheffield v. Los Angeles County, 109 Cal. App. 4th 153, 161 (2003) (citing Aguilar, 21 Cal. 4th at ); accord Oncale, 523 U.S. at 81 ( We have never held that workplace harassment... is automatically discrimination because of sex merely because the words used have sexual content or connotation. The critical issue, Title VII s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. ) (internal citations omitted). 18 Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997) (holding that there was no evidence that such comments had any connection whatsoever with the sexual acts which they make reference... [and instead were] simply expressions of animosity or juvenile provocation, where, in an all-male environment, the accused made similar statements to two other co-workers, and never made any reference to the plaintiff s gender in any of the exchanges).

5 Labor and Employment Litigation in the Entertainment Industries 741 female plaintiff, holding that the hostility was grounded in workplace dynamics unrelated to the plaintiff s sex and did not reflect an attack on her because she was a woman. 19 Similarly, the D.C. Circuit held that a campaign of vulgarity by a security guard, including kissing gestures and oral sex comments, was a workplace grudge match, and, therefore, not directed at an employee because of sex. 20 These cases appear to reflect a general unwillingness of the courts to impose liability based solely on speech unless it has been directed at a particular employee (or group of employees) because of sex regardless of how vulgar, graphic, or unnecessary to the purposes of the job the speech or conduct may be. Of course, sexual slurs in the workplace are not immune from challenge under antiharassment laws, and whether a court finds sufficient evidence of an intent to intimidate or ridicule the plaintiff s gender can sometimes be a close call. The Eleventh Circuit s recent decision in Reeves v. C.H. Robinson Worldwide, 594 F.3d 798 (11th Cir. 2010), highlights such a circumstance. In Reeves, the court held that male employees references to women (but not to the plaintiff ) as bitch, fucking bitch, fucking whore, crack whore, and cunt, created an inference of an intent to discriminate on the basis of sex, where the plaintiff claimed that such comments were a daily occurrence, and were usually directed at other women employees or customers. The court recognized that sexual language and discussions that truly are indiscriminate do not themselves establish sexual harassment under Title VII, but found that the above-described words were gender specific, derogatory and humiliating. The court found unpersuasive the employer s evidence that such comments were used in the workplace prior to the plaintiff s arrival (and thus could not be because of her sex) because there was no evidence of any instances of similarly derogatory comments made about males harassment on production: lyle v. warner brothers television Very few courts have addressed the issue of whether speech related to an employee s job, or an employer s business, can be the basis for a hostile work environment claim. 22 So, for 19 Brown v. Henderson, 257 F.3d 246, 256 (2nd Cir. 2001). A crucial factor in the court s holding was the plaintiff s own testimony that she believed the harassment, including the graphic caricatures, was fundamentally a workplace dispute regarding a recent union election, and had nothing to do with her gender. Id. 20 Davis v. Int l Security, Inc., 275 F.3d 1119, 1123 (D.C. Cir. 2002) ( Although the accused employees performances were certainly tinged with offensive sexual connotations, we agree with the district court that when their behavior is viewed in light of surrounding circumstances, the two were not sexually propositioning [plaintiff ]. ). 21 Cf. Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000) (opn. of Beam, C.J.) ( mere use of the word, bitch, without other evidence of sex discrimination, is not particularly probative of a general misogynist attitude. ). 22 But see Clark County School District v. Breeden, 532 U.S. 268, 271 (2001) (Supreme Court found that the plaintiff had not been subjected to a hostile work environment in violation of Title VII despite her supervisor s reading of a sexual statement in a job applicant s psychological evaluation report, making a joke about the statement, and then laughing. The Supreme Court found that [t]he ordinary terms and conditions of respondent s job required her to review the sexually explicit statement in the course of screening job applicants. ); Cain v. Blackwell, 246 F.3d 758, (5th Cir. 2001) (affirming summary judgment for the employer and holding

6 742 Entertainment Litigation example, can the talent agency assistant who overhears her boss comment daily on the physical attributes of the female actors he represents claim unlawful harassment? Can the production assistant forced to watch a graphic nude scene as it is shot pursue a claim? Can a writers assistant on a popular situation comedy support her claim for harassment with evidence that the writers told sexual jokes and discussed their own sexual experiences? Th is latter question was addressed by the California Supreme Court in Lyle v. Warner Bros. Television Productions, where the California Supreme Court had occasion to examine the extent to which offensive workplace speech can be regulated and punished consistent with First Amendment guarantees. In Lyle, the California Supreme Court confirmed that, while the use of vulgarity in the workplace may be actionable under some circumstances, such speech when not directed at a particular employee (or group of employees) because of gender does not constitute unlawful sexual harassment. Plaintiff Amaani Lyle was hired as a writers assistant on the popular 90s television show, Friends, a situational comedy regarding the lives of sexually active young adults. 23 Th e show, as aired, frequently used sexual and anatomical language, innuendo, plays on words, and physical gestures to create humor concerning such matters as oral sex, anal sex, heterosexual sex, gay sex, talking dirty during sex, premature ejaculation, pornography, pedophiles, and so-called threesomes. 24 Lyle claimed that, during her brief four months of employment, she witnessed male (and female) writers engage in a myriad of offensive conduct, including sexual banter, comments, and jokes about the writers own personal sexual experiences, vulgar expressions, sexually graphic drawings, and simulated masturbation. 25 For example, Lyle claimed that the male writers often spoke of their own sexual experiences, including blow job stories, they made masturbatory gestures to indicate that a particular discussion was boring, they drew female that in light of plaintiff s unique work environment caring for patients with Alzheimer s and Parkinson s disease exposure to targeted racial epithets and sexual comments did not constitute severe or pervasive harassment); Dawson v. Bumble & Bumble, 246 F. Supp. 2d 301, 310 (S.D.N.Y. 2003) (comments about the plaintiff s physical appearance by co-workers at a high end beauty salon did not give rise to a hostile work environment claim, observing that [w]here the work environment by its very nature engenders criticism about personal mien, manner and styles, a court is well-advised to probe exactingly at challenges to such commentary arising uniquely from the social context, and to exercise corresponding caution when called upon to rule as a matter of law that remarks about a particular individual s appearance, that may be contextually grounded, give rise to a claim for sexual discrimination ). Indeed, the California Court of Appeal has recognized that some work environments may require an employee to submit to substantial invasions of privacy, even those which clearly would be harassing in other contexts. See Feminist Women s Health Ctr. v. Superior Court, 52 Cal. App. 4th 1234 (1997) (ordering entry of judgment on plaintiff s wrongful termination in violation of a public policy claim arising from a female health center s requirement that the plaintiff perform a cervical self-examination in front of customers and other employees). 23 Lyle, 38 Cal. 4th at Id. at Id. at Because the trial court had granted summary judgment in favor of the defendants, the California Supreme Court was required to assume the truth of Lyle s allegations, many of which were denied by the defendants.

7 Labor and Employment Litigation in the Entertainment Industries 743 genitalia on a coloring book left around the writers room, and they altered the name Friends on scripts to read penis. 26 Th is alleged conduct generally was related to the creation of the adult-themed situation comedy, and many of the show s scripts were generated from these very discussions. Sexual speech was not directed at Lyle or other female employees in the writers room; both before and after Lyle was hired, male and female writers discussed their own sexual experiences to create material for the show. 27 Nevertheless, Lyle claimed that mere utterance of certain vulgar words by the writers was inherently discriminatory and created an unlawful, hostile work environment under the Fair Employment and Housing Act (FEHA). 28 Th e California Supreme Court flatly rejected Lyle s claims, holding it is the disparate treatment of an employee on the basis of sex not the mere discussion of sex or use of vulgar language that is the essence of a sexual harassment claim. 29 Lyle s harassment claim, no matter how vulgar or salacious the alleged speech or conduct, could not meet this standard because she had no evidence of jokes, comments, or pictures that were directed at her (or other female employees) because of her gender. 30 Th e Court examined the circumstances surrounding the sexual speech at issue and found evidence that all of the writers assistants on the Friends production, both male and female, were privy to the same creative process, including the same sorts of jokes, stories, gestures, and comments. There was no evidence that the writers engaged in such behavior in order to make Lyle feel uncomfortable or self-conscious, or to intimidate or ridicule her. Indeed, the Court noted, if Lyle had been a man, she would have experienced the exact same conditions of employment. 31 Th e Court likewise rejected Lyle s contention that her sexual harassment claim was also supported by the writers purported disparaging remarks about the show s female actors (all of which were vehemently denied by the writers). While the Court commented that such comments raised at least an inference that certain employees were targeted because of their sex, the allegations were not actionable as harassment because the comments were neither sufficiently severe nor pervasive to alter the conditions of employment and create a hostile work environment. 32 Th e Lyle Court reaffirmed the longstanding legal principle that sexual language is actionable as harassment only if it is discriminatorily targeted at an employee or group of 26 Id. 27 Id. at Id. at Id. at The Court recognized that the instances of sexual antics and sexual discussions did not involve and were not aimed at [Lyle] or any other female employee. Id. at The Court disregarded Lyle s contention that much of the writers vulgar discussions and conduct wasted her time, stating that there was no indication that the conduct affected the work hours or duties of plaintiff and her male counterparts in a disparate manner. Id. at Id. at Because Lyle did not claim that the alleged derogatory comments were directed at her or involved her in any way, she was obligated to set forth specific facts from which a reasonable trier of fact could find the conduct permeated her direct workplace environment and was pervasive and destructive. Id. at 289 (quoting Fisher, 214 Cal. App. 3d at 610). The Court found that evidence that the more graphic comments were made only once or twice failed to meet this high standard. Id. at

8 744 Entertainment Litigation employees because of their sex. In Lyle, the nature of the defendants work, as writers for a show featuring sexual themes and storylines, played a significant factor in the Court s determination that the sexual speech was not motivated by the plaintiff s gender, but rather used as a tool of the trade to foster a creative work environment. 33 Thus, the Lyle Court confirmed that the mere discussion of sex or use of vulgar language, without specifically targeting an employee (or the employee s gender in general), is insufficient to support a hostile work environment claim. 34 One issue left open by Lyle is the interplay between anti-harassment laws that purport to regulate and punish speech and the First Amendment and similar state constitutional guarantees of free speech. Like many in the entertainment industry, the writers on Friends relied heavily on the free flow of ideas and unhampered creativity in doing their jobs. 35 Th is creative work environment included using sexual speech and making off-color remarks in order to provoke discussion (and humor) and ultimately develop the show s adult-oriented themes and storylines. Though the majority of the Supreme Court concluded that the writers unfettered discussions did not rise to the level of unlawful harassment, it did not decide the complex issue of the scope of First Amendment protections in California workplaces. One California Supreme Court justice, Ming Chin, did attempt to explain those protections in a separate concurring opinion. Justice Chin wrote of how Lyle s attack on the Friends creative process has very little to do with sexual harassment and very much to do with core First Amendment free speech rights. 36 As Justice Chin recognized, the First Amendment protects creativity. 37 While [b]alancing the compelling need to protect employees from sexual harassment with free speech rights can, in some contexts, present very difficult questions, the Lyle case present[ed] a clear and present danger to fundamental free rights. 38 Creative expression in this instance, sexual repartee was an integral part of the process of generating material for the show. In such situations, where the employer s very business is speech-related, Justice Chin recognized that First Amendment protections are paramount. Justice Chin s concurrence suggests that speech arising in the context of a creative or editorial process (like a writers room or newsroom) should be actionable only if directed at the plaintiff. 39 Th is limitation, according to Justice Chin, presents the proper balance between 33 Id. at 287. The broad legal principles articulated in the decision, which are primarily based on federal sexual harassment law, make clear that Lyle s holdings apply to all industries, not just creative work environments or employees who serve in creative capacities. 3 4 Id. at As explained in an amicus curiae brief submitted on behalf of the Writers Guild of America, West, Inc., the Directors Guild of America, the Screen Actor s Guild, and 131 individuals, [g]roup writing... requires an atmosphere of complete trust. Writers must feel not only that it s all right to fail, but also that they can share their most private and darkest thoughts without concern for ridicule or embarrassment or legal accountability. 36 Id. at 296 (Chin, J., concurring). 37 Id. at Id. at Id. at 300 ( Where, as here, an employer s product is protected by the First Amendment whether it be a television program, a newspaper, a book, or any other similar work the challenged speech arose in the context of the creative and/or editorial process, and it was not directed at or about the plaintiff. ).

9 Labor and Employment Litigation in the Entertainment Industries 745 two competing interests : (1) free speech, which is critical, and (2) protecting employees involved in the creative process against offensive language and conduct not directed at them, which is in comparison, minimal. 40 In future litigation over workplace speech, Justice Chin s opinion may serve as an important starting point for analysis of the First Amendment considerations practice pointers a. Employers Should Consider Warning Job Applicants About Exposure to Potentially Offensive Speech In evaluating the sufficiency of the plaintiff s factual showing, the California Supreme Court in Lyle repeatedly observed that Lyle was warned before she was hired that the show Friends dealt with sexually suggestive subject matter and that, as an assistant to the comedy writers, she would be exposed to their jokes and discussions about sex. 42 While the California Supreme Court did not explicitly rule that such advance notice is legally required, providing such a notice (preferably in writing) to job applicants and employees may nonetheless serve useful purposes in workplaces in which exposure to offensive speech is an inherent part of the job. 43 A written notice, like that attached as Form 12-1, is an effective way to place applicants on notice of the working environment. An applicant who is truly uncomfortable with, or offended by, sexual speech, has an opportunity to decline the position upon receiving 40 Id. 41 Most recently, the Ninth Circuit affirmed the viability of the First Amendment as a defense to a harassment claim in Rodriguez v. Maricopa County Cmty College Dist., 2009 U.S. App. LEXIS (May 20, 2010). As in Lyle, Rodriguez suggests that where speech is not directed at an individual in a discriminatory fashion, and does not contain any harassing or offensive conduct or implied threat of conduct, it is protected under the First Amendment and does not constitute unlawful harassment. Rodriguez, at * (holding that a series of offensive s disseminated to school employees via an electronic mailing list did not constitute racial harassment; noting that harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment. For instance, racial insults or sexual advances directed at particular individuals in the workplace may be prohibited on the basis of their non-expressive qualities... as they do not seek to disseminate a message to the general public, but to intrude upon the targeted [listener], and to do so in an especially offensive way. But [the speaker s] website and s were pure speech; they were the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot. Their offensive quality was based entirely on their meaning, and not on any conduct or implicit threat of conduct that they contained. ) (internal citations omitted). Prior courts that had considered the First Amendment implications of speech directed at employees because of race or sex did not see free speech rights as blocking the imposition of liability for unlawful harassment. See Aguilar, 21 Cal. 4th 121 (holding that epithets directed at employees because of their race were not protected by the First Amendment); Herberg v. California Institute of the Arts, 101 Cal. App. 4th 142, 150 (2002) (rejecting the defendant s First Amendment defense and implying that a sexually explicit drawing of an employee entitled The Last Art Piece, displayed by art students in a designated gallery area, could have created a hostile work environment had it not been removed within twenty-four hours by the artists, with a letter of apology to the subject employee). 42 Lyle, 38 Cal. 4th at 271, See Form 12-1 for a sample written notice.

10 746 Entertainment Litigation such notice. Moreover, from a legal perspective, employees who sign an acknowledgment and accept the position will have a more difficult time later establishing that the sexual speech was so severe or pervasive that it altered the conditions of employment. b. Employers Should Implement Effective Complaint Procedures In Lyle, the plaintiff s failure to complain about the writers purported offensive epithets directed at other women was a factor the California Supreme Court considered in concluding that Lyle did not subjectively perceive such comments as hostile and abusive to her own work environment. 44 The Court s finding serves as a reminder to employers that it is critical to provide employees with a comprehensive and well-publicized process for registering complaints about harassment. Employees should be encouraged to report inappropriate sexual speech or conduct to human resources, their supervisors, or a neutral management designee for prompt investigation. Employees should also be reassured that they will not be retaliated against for their complaints. With such a process in place, an employee who chooses not to complain about perceived sexual harassment will, after Lyle, have a difficult time showing that he or she subjectively perceived the conduct as severe or pervasive. 45 c. Employers Should Raise the First Amendment at All Stages of Litigation When faced with a complaint alleging claims based solely on speech, a defendant should consider whether it is appropriate to raise First Amendment protections as an affirmative defense. To avoid waiving what may ultimately prove to be a viable and powerful defense, the defense should be pled in the answer. 46 The First Amendment may also provide basis for a demurrer or motion for summary judgment.47 Finally, prior to trial, the First Amendment may serve as the basis for a motion in limine on the ground that if a jury is permitted to consider evidence of protected speech, any verdict will be subject to reversal Lyle, 38 Cal. 4th at When litigating a hostile work environment claim, an employer will be able to raise as an affirmative defense that the employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer to avoid the harm. See Faragher, 524 U.S. at 787; State Dept. of Health Services v. Superior Court, 31 Cal. 4th 1026, 1034 (2003) (holding that the avoidable consequences doctrine applies to damage claims under the FEHA, and that under that doctrine a plaintiff s recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation). 46 Carranza v. Noroian, 240 Cal. App. 2d 481, 488 (1996) (affirmative defenses not raised in the answer are irrelevant at trial). 47 Lyle, 38 Cal. 4th at 300 (Chin, J., concurring). 48 N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, (1982) (verdict must be vacated where court cannot tell if the verdict was based, in part, on constitutionally protected activity).

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