The Friends Case: Just How Friendly Is It? Paul Bressan, Esq. and Nicole D. Gomes, Esq. On April 20, 2006, the California Supreme Court issued its ruling in a sexual harassment case entitled Lyle v. Warner Bros. Television Productions (38 Cal.4th 264). In Lyle, the Supreme Court addressed the issue of whether sexually explicit language used during the writing process for a popular sitcom, Friends, constituted actionable sexual harassment under California law. The Supreme Court unanimously held in favor of Warner Bros., upholding the lower court’s dismissal of the complaint. Before thinking that this decision gives free reign to sexually explicit conversation in the workplace, employers must take a moment to examine what this case really means—and what it does not mean. The Lyle plaintiff was a writers’ assistant on Friends, which revolved around a group of young, sexually active adults. The show featured adult‐oriented sexual humor, particularly through wordplay and physical gestures. Ms. Lyle claimed that the writers’ use of sexually coarse and vulgar language and conduct in the workplace, including the recounting of their own sexual experiences, constituted unlawful sexual harassment under California law. In its defense, Warner Bros. did not deny the sexually‐explicit workplace conduct. Rather, Warner Bros. argued that this sexually explicit language was a necessary part of the creative process. That is, to produce a hit T.V. show, the writers had to exchange sexually explicit comments and stories in order to create the right dialogue for the characters on Friends. Therefore, Warner Bros. argued, Ms. Lyle’s job required her to be exposed to sexual jokes and discussions. The California Supreme Court agreed with Warner Bros. and held that Ms. Lyle had not proven a case of sexual harassment. In reaching this conclusion, the Supreme Court emphasized the following:  The essence of actionable sexual harassment is the disparate treatment of an employee because of the employee’s sex—not the mere discussion of sex or the use of vulgar language.  Both male and female writers engaged in the sexual discussion in question, and both male and female employees were exposed to these discussions.  The nature of the working environment for the development of this sitcom required that the writers be allowed creative expression during their brainstorming sessions, which included the exchange of sexually‐explicit comments. 
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Most of the sexually coarse and vulgar language was not directed at Ms. Lyle specifically, or at female employees in general. Ms. Lyle had been warned about this sexually charged workplace atmosphere before she accepted her position, and she said that this atmosphere would not make her uncomfortable. Thus, although not unique, this case presented a rather unusual set of circumstances that enabled the Supreme Court to conclude that the conduct in question was not sexual harassment. However, the Court emphasized that, in other circumstances (i.e. different types of workplaces), sexually‐explicit and vulgar language may constitute sexual harassment in the context of the totality of circumstances. Generally speaking, therefore, employers that allow their workplace to become like the sexually‐charged environment at Warner Bros. are likely to find themselves facing a different outcome. That is, the “creative necessity” defense that won the day for Warner Bros. is likely to have limited application, and only will apply to circumstances where the nature of the work requires exposure to sexually explicit conduct. Does this mean that most employers should ignore this unanimous decision by the California Supreme Court? Not exactly. There are some lessons to be learned that are of more general applicability. First, this decision may indicate some judicial recognition of the fact that not every off‐color joke or sexual comment should create a sexual harassment claim. To be actionable, the conduct must be sufficiently severe and pervasive. Second, to be actionable, sexual conduct must be directed at an employee (or employees) because of the employee’s sex. Vulgarities and rude comments may not qualify as sexual harassment if they are not directed in this fashion, but are made to the general employee populace. This does not mean that the “equal opportunity harasser”—that is, someone who sexually harasses all employees (regardless of sex)—will get away with sexual harrassment, but it does indicate that certain conduct may fail to rise to the level of actionable sexual harassment if it simply is rude and crude behavior that merely offends. Third, as expressed in the concurring opinion in Lyle, this case suggests that “speech” may be less actionable than other forms of conduct because of the First Amendment right of “free speech.” Although the concurring opinion was focused on free speech in the www.buchalter.com creative process, the day is soon approaching where the Supreme Court will have to decide not only that issue, but whether freedom of speech, in general, will influence what constitutes an actionable sexual harassment claim. The bottom line, therefore, is this: Employers should make sure that they are up‐to‐date and fully compliant with their sexual harassment policies and sexual harassment training. They should diligently monitor their workplaces, and take prompt and effective action wherever there is a hint of conduct that could be perceived as sexual harassment. By the same token, if faced with a lawsuit claiming sexual harassment, employers should look at the “totality of circumstances” to see if the Lyle decision gives them an opportunity to assert a defense that previously might have been considered unavailable. Paul Bressan is a Shareholder in the Los Angeles office. He can be reached at (213) 891‐5220 or by email at pbressan@buchalter.com. Nicole D. Gomes is an Associate in the Los Angeles office. She can be reached at (213) 891‐5169 or by email at ngomes@buchalter.com. www.buchalter.com