What constitutes sexual harrassment?

[mamagaea]

Here is an excerpt from today's blog from officialgaiman. It includes a link to the ruling about the case mentioned. I felt Judge Chin's Opinion was interesting enough to include under the cut.

I blogged about the following legal case a few years ago, in which a writing assistant was suing Warner Brothers TV and others over FRIENDS, claiming that sexual talk by writers during creative sessions was sexual harrassment in http://www.neilgaiman.com/journal/2004/04/heigh-ho-glamorous-life.asp

but now a decision has come down...

Here is the LA County Bar Association's report of the case, along with a
link to the decision:

Where terms of plaintiff's employment required her to transcribe sexually
oriented jokes and discussions related to the creation of a television
situation comedy featuring sexual themes, and where such jokes and
discussions included sexually coarse and vulgar language that included
discussion of the writers' own sexual experiences but, for the most part,
did not involve and was not aimed at plaintiff or other women in the
workplace, no reasonable trier of fact could conclude such language
constituted harassment directed at plaintiff because of her sex within the
meaning of the Fair Employment and Housing Act or that the comments were
severe enough or sufficiently pervasive to create a work environment that
was hostile or abusive to plaintiff in violation of the FEHA.
Lyle v. Warner Brothers Television Productions - filed April 20, 2006
Cite as 2006 SOS 1999
Full text .pdf file http://www.metnews.com/sos.cgi?0406%2FS125171

It's a pdf file -- towards the end is a remakably sensible concurring judgement from Judge Chin, that people should actually read.



CONCURRING OPINION BY CHIN, J.
I agree that the trial court properly granted summary judgment in favor of
defendants under the relevant statutes. I write separately to explain that any other
result would violate free speech rights under the First Amendment of the United
States Constitution and its California counterpart, article I, section 2, of the
California Constitution (hereafter collectively the First Amendment).
This case has very little to do with sexual harassment and very much to do
with core First Amendment free speech rights. 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.
(Winter v. DC Comics (2003) 30 Cal.4th 881, 888, 891.) Friends was
entertainment, but entertainment is fully entitled to First Amendment protection.
“There is no doubt that entertainment, as well as news, enjoys First Amendment
protection.” (Zacchini v. Scripps-Howard Broadcasting Co. (1977) 433 U.S. 562,
578; see also Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501-502 [First
Amendment protects motion pictures].) “ ‘[T]he constitutional guarantees of
freedom of expression apply with equal force to the publication whether it be a
news report or an entertainment feature.’ ” (Gates v. Discovery Communications,
Inc. (2004) 34 Cal.4th 679, 695.) Scripts of the Friends show “ ‘are no less
protected because they provide humorous rather than serious commentary.’ ”
(Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 406.)
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We have found that the First Amendment protects even threatening speech
that does not rise to a criminal threat. (In re George T. (2004) 33 Cal.4th 620
[dark poetry in school].) Similarly, we should protect the creative speech here. I
do not suggest that the First Amendment protects all sexually harassing speech.
Just as criminal threats are beyond protection (In re George T., supra, 33 Cal.4th
at p. 630; People v. Toledo (2001) 26 Cal.4th 221, 228-229), so too may the state
proscribe sexual harassment. But the proscription must be carefully tailored to
avoid infringing on First Amendment free speech rights in the creative process.
Balancing the compelling need to protect employees from sexual
harassment with free speech rights can, in some contexts, present very difficult
questions. For example, a potential, and sometimes real, tension between free
speech and antiharassment laws exists even in the ordinary workplace. (See, e.g.,
Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131, fn. 3, 136-
137, fn. 5 (Aguilar); see also id. at pp. 147-169 (conc. opn. of Werdegar, J.); id. at
pp. 169-176 (dis. opn. of Mosk, J.); id. at pp. 176-189 (dis. opn. of Kennard, J.);
id. at pp. 189-196 (dis. opn. of Brown, J.).) Debating these issues has kept
academia occupied. (See, e.g., Volokh, Freedom of Speech and Workplace
Harassment (1992) 39 U.C.L.A. L.Rev.1791 (Volokh) [generally defending free
speech against harassment laws unless the hostile speech is directed towards the
plaintiff]; Sangree, Title VII Prohibitions Against Hostile Environment Sexual
Harassment and the First Amendment: No Collision in Sight (1995) 47 Rutgers
L.Rev. 461 [generally defending antiharassment laws against First Amendment
attack and disagreeing with much of Professor Volokh’s argument]; Volokh, How
Harassment Law Restricts Free Speech (1995) 47 Rutgers L. Rev. 563 [Professor
Volokh’s response to Professor Sangree]; McGowan, Certain Illusions About
Speech: Why the Free-Speech Critique of Hostile Work Environment Harassment
Is Wrong (2002) 19 Const. Comment. 391 (McGowan) [generally defending
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antiharassment laws against First Amendment attack]; see also Aguilar, supra, at
pp. 136-137, fn. 5.)
But the issue here is quite different. In Aguilar, supra, 21 Cal.4th 121, the
workplace was a car rental company. Creative expression was not the company’s
product. Here, by contrast, the product, a comedy show, was itself expression.
Questions regarding free speech rights in the ordinary workplace—where speech
is not an integral part of the product—can be difficult, as the five separate
opinions in Aguilar attest. I need not, and do not, go into these questions here,
because this case presents an entirely different and, to my mind, rather
straightforward constitutional question. When, as here, the workplace product is
the creative expression itself, free speech rights are paramount. The Friends
writers were not renting cars and talking about sex on the side. They were writing
adult comedy; sexual repartee was an integral part of the process.
Lawsuits like this one, directed at restricting the creative process in a
workplace whose very business is speech related, present a clear and present
danger to fundamental free speech rights. Even academics who generally defend
antiharassment law against First Amendment attack recognize the importance of
defending the First Amendment in a context like this. (E.g., McGowan, supra, 19
Const. Comment. at pp. 393, 425-431 [concluding, on p. 431, “In expressive
workplaces that foster, support, and encourage debate, discussion, and plural
opinions, the First Amendment insulates much more.”].)
For example, Professor McGowan contrasts two workplace situations
involving the display of Playboy Magazine centerfolds: (1) at a shipyard where
only one woman is employed as a welder, and (2) in a museum where centerfolds
were displayed “to document changes in American visions of female beauty.”
(McGowan, supra, 19 Const. Comment. at p. 391.) McGowan argues that free
speech rights must yield to antiharassment law in the first case. But she agrees
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that the museum is an expressive workplace and, as such, is entitled to First
Amendment protection. This case is like the second situation, not the first. As
Professor Volokh explains, the free speech problem is especially serious “if the
speech that creates the hostile work environment is an inherent part of the
employer’s business.” (Volokh, supra, 39 U.C.L.A. L.Rev. at p. 1853.) “It seems
clear that, say, a female employee of an art gallery—or a female employee of an
adult bookstore—cannot claim that sexually explicit materials in the workplace are
creating a hostile work environment.” (Id. at p. 1861.)
The writers here did at times go to extremes in the creative process. They
pushed the limits—hard. Some of what they did might be incomprehensible to
people unfamiliar with the creative process. But that is what creative people
sometimes have to do. As explained in an amicus curiae brief representing the
Writers Guild of America, West, Inc.; the Directors Guild of America; the Screen
Actors Guild; and 131 named individuals representing a “who’s who” of television
and motion picture writers and directors (hereafter the Writers Guild brief), “the
process creators go through to capture the necessary magic is inexact,
counterintuitive, nonlinear, often painful—and above all, delicate. And the
problem is even more complicated for group writing.” “Group writing,” the brief
explains, “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.”
The brief quotes Steven Bochco, cocreator of Hill Street Blues, L.A. Law, and
NYPD Blue, and one of the individuals the brief represents, as explaining that a
“certain level of intimacy is required to do the work at its best, and so there is an
implicit contract among the writers: what is said in the room, stays in the room.”
The brief further explains that “with adult audiences in particular, the characters,
dialogue, and stories must ring true. That means on shows like Law and Order,
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ER, or The Sopranos, writers must tap into places in their experience or psyches
that most of us are far too polite or self-conscious to bring up.”
The creative process must be unfettered, especially because it can often
take strange turns, as many bizarre and potentially offensive ideas are suggested,
tried, and, in the end, either discarded or used. As the Writers Guild brief notes,
“All in the Family pushed the limits in its day, but with race rather than sex.” The
brief quotes Norman Lear, All in the Family’s creator, and another of the
individuals on whose behalf the brief was filed, as saying, “We were dealing with
racism and constantly on dangerous ground. . . . We cleaned up a lot of what was
said in the room, and some people still found it offensive.” It is hard to imagine
All in the Family having been successfully written if the writers and others
involved in the creative process had to fear lawsuits by employees who claimed to
be offended by the process of discovering what worked and did not work, what
was funny and what was not funny, that led to the racial and ethnic humor actually
used in the show.
“[S]peech may not be prohibited because it concerns subjects offending our
sensibilities.” (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245.) We
must not permit juries to dissect the creative process in order to determine what
was necessary to achieve the final product and what was not, and to impose
liability for sexual harassment for that portion deemed unnecessary. Creativity is,
by its nature, creative. It is unpredictable. Much that is not obvious can be
necessary to the creative process. Accordingly, courts may not constitutionally
ask whether challenged speech was necessary for its intended purpose. (Shulman
v. Group W. Productions, Inc. (1998) 18 Cal.4th 200, 229.) “The courts do not,
and constitutionally could not, sit as superior editors of the press.” (Ibid.)
For this reason, it is meaningless to argue, as plaintiff does, that much of
what occurred in this process did not make its way into the actual shows. The
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First Amendment also protects attempts at creativity that end in failure. That
which ends up on the cutting room floor is also part of the creative process. An
amicus curiae brief representing, among others, the American Booksellers
Foundation for Free Expression explains: “To require the participants to justify
after the fact the ‘necessity’ of minor segments of the creative process represents a
misunderstanding of the creative process. That process usually includes many
dead ends that are not reflected in the final work. But the dead ends are part of
creating the final work; the fact that one approach or suggestion is not productive
is part of the process of creatively reaching end result. In that sense the dead ends,
as well as everything else in the creative process, are necessary.”
The Writers Guild brief explains it similarly. “[T]he creative person tr[ies]
one notion after another before coming up with the final product. Writers are like
scavengers and get their ideas wherever they can: ‘Ninety percent of everything
doesn’t work,’ says Lear, ‘That’s why it’s so hard, that’s why you spend so much
time there.’ . . . Lear puts it this way: ‘There were things we said we would never
print. That’s true of racism or any touchy subject. That’s what it takes to make a
great show: smart people sitting in a room, going wherever they want.” As that
brief notes, “It is impossible to imagine how writers, directors, and actors could
work together if they had to worry about doing only what was ‘creatively
necessary’ in order not to offend a worker on the set.”
Does this mean that anything that occurs while writing a television show is
permissible? Do employees involved in that process receive no protection? Of
course not. Just as criminal threats are not protected, just as no one has the right to
falsely shout fire in a crowded theater, limits exist as to what may occur in the
writers’ room. I agree with Professor Volokh that, even in this context, speech
that is directed, or “aimed at a particular employee because of her race, sex,
religion, or national origin,” is not protected. (Volokh, supra, 39 U.C.L.A. L.Rev.
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at p. 1846.) “The state interest in assuring equality in the workplace would justify
restricting directed speech . . . .” (Ibid.) Speech directed towards plaintiff because
of her sex could not further the creative process.
Accordingly, I agree with the general test proposed in the amicus curiae
brief of the California Newspaper Publishers Association et al.: “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 should not be actionable if the court finds that the speech arose
in the context of the creative and/or editorial process, and it was not directed at or
about the plaintiff.”
This test presents the proper balance. Often, free speech cases involve the
very difficult balancing of important competing interests. But here, in the creative
context, free speech is critical while the competing interest—protecting employees
involved in the creative process against offensive language and conduct not
directed at them—is, in comparison, minimal. Neither plaintiff nor anyone else is
required to become part of a creative team. But those who choose to join a
creative team should not be allowed to complain that some of the creativity was
offensive or that behavior not directed at them was unnecessary to the creative
process.
When First Amendment values are at stake, summary judgment is a favored
remedy. “ ‘[B]ecause unnecessarily protracted litigation would have a chilling
effect upon the exercise of First Amendment rights, speedy resolution of cases
involving free speech is desirable. [Citation.] Therefore, summary judgment is a
favored remedy [in such cases] . . . .’ ” (Shulman v. Group W Productions, Inc.,
supra, 18 Cal.4th at p. 228.) “ ‘To any suggestion that the outer bounds of liability
should be left to a jury to decide we reply that in cases involving the rights
protected by the speech and press clauses of the First Amendment the courts insist
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on judicial control of the jury.’ ” (Ibid.) “While the crucial test as to whether to
grant a motion for summary judgment remains the same in free speech cases (i.e.,
whether there is a triable issue of fact presented in the case), the courts impose
more stringent burdens on one who opposes the motion and require a showing of
high probability that the plaintiff will prevail in the case. In the absence of such
showing the courts are inclined to grant the motion and do not permit the case to
proceed beyond the summary judgment stage [citations].” (Sipple v. Chronicle
Publishing Co. (1984) 154 Cal.App.3d 1040, 1046-1047.)
Indeed, cases like this, arising in a creative context, often can and should be
decided on demurrer. (Winter v. DC Comics, supra, 30 Cal.4th at pp. 891-892.)
Because even the taking of depositions could significantly chill the creative
process, by destroying the mutual trust and confidentiality necessary to writing
television shows like Friends, courts should independently review the allegations
to ensure that First Amendment rights are not being violated. (See In re George
T., supra, 33 Cal.4th at pp. 631-632 [independent judicial review necessary when
First Amendment interests are at stake].) If the complaint does not allege that the
offending conduct was pervasive and directed at the plaintiff, and include specific
supporting facts that, if true, would establish those allegations, the court should
grant a demurrer. The threat of litigation must not be permitted to stifle creativity.
We must “[a]lways remember[] that the widest scope of freedom is to be
given to the adventurous and imaginative exercise of the human spirit . . . .”
(Kingsley Pictures Corp. v. Regents (1959) 360 U.S. 684, 695 (conc. opn. of
Frankfurter, J.).) We must not tolerate laws that “lead to timidity and inertia and
thereby discourage the boldness of expression indispensable for a progressive
society.” (Ibid.) The allegedly offending conduct in this case arose out of the
protected creative process and was not directed at plaintiff. Accordingly, the trial
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court properly granted summary judgment in defendants’ favor. The First
Amendment demands no less.
CHIN, J.