According to the justices, miming sexual gratification, drawing graphic pictures and words, detailing sexual preferences, bragging about exploits did not present a triable issue of harassment. In fact, the court opined that the lewd and crude behavior of the writers was a necessary part of their job.
But, the question is: how did the court reach this decision and when might this type of behavior rise to the level of sexual harassment?
The Case History
Ironically, Ms. Lyle had been fired for failing to capture the writer's lewd exchanges fast enough. Upon being fired, after four months of employment, she sued in state court for race discrimination, sexual harassment, retaliation and wrongful termination. Ms. Lyle lost. The state court found that her claims were frivolous, and was ordered to pay costs and the defendants' legal fees, totaling more than $415,000.
Lyle then appealed. The appellate court reversed the fee awards and allowed her claim for sexual harassment to continue. Lyle had alleged that the barrage of sexual language and graphic behavior in the writing room rose to level of harassment. So, why did the Supreme Court ultimately disagree and rule against her?
A Friendly Verdict for Writers
The Justices agreed with the defense that the plaintiff's suit was without merit for two reasons. First, none of the three writers' offensive conduct was aimed at the plaintiff. Second, due to the nature of the writers' work, the pervasive sexual atmosphere was necessary for the creative process of writing an "adult" themed show.
Accordingly, the court clarified the ruling based on their opinion as follows:
The plaintiff-employee was required to show she was subjected to sexual advances, conduct, or comments that were unwelcome because of sex and the behavior was sufficiently severe or pervasive to alter conditions of employment and create an abusive work environment.
The judges stated a sexual harassment claim is not established where crude or inappropriate language or vulgar pictures are drawn without directing the sexual or gender-related language toward the plaintiff.
The employee must show she was subjected to sexual advances, conduct or comments severe enough to alter conditions of employment and create a hostile or abusive work environment. The court did not conclude the plaintiff sufficiently showed she was subjected to a pattern of pervasive sexual harassment because the allegations did not indicate frequency, intensity or timeliness.
To be actionable, the environment is one a reasonable person finds hostile or abusive. According to the ruling, common sense and social context will guide courts and juries in order to distinguish between "simple teasing" and behavior that a reasonable person finds severely hostile or abusive. The defense stated they warned the plaintiff in her job interview she was expected to transcribe sexual content. The plaintiff agrees she was told during her interview the humor could get a "little lowbrow." However, she contends the actual environment was greatly understated and these raw discussions did not lead to material in the show.
Freedom of Speech
In a concurring opinion, Justice Chin went even further and addressed the defendants' claim that this case was an attack on the First Amendment Freedom of Speech, and had little to do with sexual harassment. The opinion stated that the First Amendment protects creativity, and that these writers were protected by freedom of speech. Even though the writers' sexual antics and discussions were never incorporated in the show, they were still protected as part of the creative process.
Reactions to the Ruling
The entertainment industry exhaled a collective sigh of relief. A representative from the Writers' Guild says the ruling tells the industry they can continue to "create as freely as they want."
One of Lyle's lawyers called the ruling "shocking." The California Women's Law Center submitted an Amicus Curiae Letter opposing that the First Amendment argument even be allowed for review. They asserted it was a grab for special consideration, inconsistent with established case law that would render protection for millions as meaningless. Furthermore, the group pointed out, the media can be restricted by the government. The FCC has the power to regulate the broadcast of obscene, indecent or profane language.
As for the defense's argument that the plaintiff was warned about the environment, they stated this tactic perpetuates modes of operation in the workplace that are inhospitable and exclude women. One should not have to be "one of the boys" to get along.
When is sexual harassment legally considered sexual harassment?
Sexual harassment claims are made under Title VII of the Federal Civil Rights Act of 1964, and applies to employers with 15 or more employees. According to the EEOC (U.S. Equal Employment Opportunity Commission):
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.
When one feels they are a victim of sexual harassment and want to take legal action, it is necessary to file a complaint with the EEOC and highly advisable to seek an employment attorney as soon as possible.
The Final Word on Sexual Harassment?
This is by no means the final word on sexual harassment in the workplace, especially the uniquely "creative" workplace within the entertainment industry. No sooner did the ink dry on this ruling, when a producer for the Maury Povich talk show filed a $100 million sexual harassment lawsuit. She alleges she was forced to expose herself for crude videos shown to guests of the show, was secretly videotaped to seduce married men, and worked in a hostile environment abusive to women. There's no business like show business.