C.A. Limits ‘Creative Necessity’ Defense in ‘Friends’ Harassment Case
By a MetNews Staff Writer
A television producer’s need to use “sexually coarse, vulgar, and demeaning language” as part of the creative process of developing scripts is not an affirmative defense to a sexual harassment claim, the Court of Appeal for this district ruled yesterday.
But the nature of the program being produced is one factor that may be considered by a jury in determining whether the defendants created a hostile work environment, Div. Seven said.
“Defendants’ argument appears to be unique in the annals of sexual harassment litigation,” Justice Earl Johnson Jr. wrote for Div. Seven. “Nevertheless we find defendants’ theory of ‘creative necessity’ has merit under the distinctive circumstances of this case and defendants are entitled to pursue their theory at trial. Defendants are not entitled to summary adjudication, however, because ‘context’ is only one factor to be considered in determining the existence of a hostile working environment and because there are triable issues of fact as to whether defendants’ conduct was indeed necessary to the performance of their jobs.”
The panel, which also included Presiding Justice Dennis Perluss and Justice Fred Woods, reinstated Aamani Lyle’s sexual and racial harassment claims against Warner Brothers Television Productions and Adam Chase, Gregory Malins, and Andrew Reich.
Warner Brothers Television—along with Bright, Kauffman, Crane Productions, which was dismissed from the suit on the ground it was never the plaintiff’s employer—produced the tremendously successful ABC series “Friends,” now in its last season. Chase and Malins were executive producers and writers on the show, and Reich was a writer.
The appellate panel handed the defendants a partial victory by upholding the dismissal of her claims that she was terminated due to her race and gender and that she was retaliated against because she complained that the lack of black characters on the show constituted discrimination against black actors.
Lyle, an African American, worked for the show for four months, as a writer’s assistant. Her duties consisted primarily of taking notes in script meetings, and the producers say she was fired because she could not type fast enough and that dialogue developed during meetings was often missing as a result.
She claims she was constantly subjected to offensive and bigoted comments and jokes made by the writers and producers during meetings. She was offended, she said, by the constant references to the defendants’ own sexual experiences, the making of sexually explicit drawings in an erotic “coloring book” one of the defendants kept on his desk, speculation about the sex lives of the actors on the show, relation of sexual fantasies, repeated use of the “F word” and a Yiddish word for penis, disparaging remarks about women’s breasts, and simulated masturbation, among other things.
The defendants argued that racially and sexually oriented comments or jokes were not severe or pervasive enough to create a hostile work environment and that such remarks were, in any event, an essential part of creating a program about sexually active young adults.
Los Angeles Superior Court Judge David A. Horowitz, who has since retired, granted summary judgment in favor of all defendants. He also found that the plaintiff’s claims were frivolous and awarded the defendants more than $400,000 in attorney fees under the Fair Employment and Housing Act.
But Johnson, writing for the Court of Appeal, said it was up to a jury to decide whether the defendants’ conduct constituted harassment “based on sex” and whether it was severe and pervasive enough to make out a cause of action or was limited to “business necessity,” a recognized defense in employment bias cases.
The justice wrote:
“Obviously the ‘creative necessity’ defense has its limits. For example, writers’ assistants cannot be kissed, fondled or caressed in the interests of developing a “love scene” between the characters. Nor would ‘creative necessity’ justify lewd, offensive or demeaning remarks directed at the writers’ assistants personally. Within such limits, however, defendants may be able to convince a jury the artistic process for producing episodes of ‘Friends’ necessitates conduct which might be unacceptable in other contexts.”
Attorneys on appeal were Mark Weidmann and Scott O. Cummings for the plaintiff and Adam Levin and Samantha C. Grant for the defendants.
The case is Lyle v. Warner Brothers Television Productions, B160528.
Copyright 2004, Metropolitan News Company