July 1, 2020

Dirty jokes and vulgar language in the workplace can be cause for concern for employers.  However, such conduct generally does not violate California law.  It is not the use of sexual speech that is prohibited by state and federal employment laws, but speech and conduct that is directed at an employee or group of employees because of their gender.  Employers can develop and enforce reasonable sexual harassment policies without having to use severely invasive surveillance to thwart lawsuits.

The Case – Lyle v. Warner Brothers Television Productions
This issue came before the California Supreme Court in Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264.  The plaintiff was hired as a writers’ assistant on the show “Friends.”  She allegedly witnessed male and female writers engage in offensive conduct including sexual banter, comments and jokes about sexual experiences, vulgar expressions, sexually graphic drawings, and sexual simulations.  Although the conduct was related to the creation of the adult-themed comedy, the plaintiff claimed the words and actions by the other writers were discriminatory and created a hostile work environment.

The Decision – Sexual and Vulgar Does Not Mean Discriminatory
A sexual harassment plaintiff must show “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.”  The plaintiff could not meet this standard because she had no evidence of jokes, comments, or pictures directed at her because of her gender.  If she “had been a man,” she would have experienced the exact same conditions of employment.  The court also considered the writers’ nondiscriminatory motives to be an important factor in rejecting the plaintiff’s claims.  [Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 280.]

The Impact – When Sexual Language is Actionable
The court’s decision held that sexual language is actionable as harassment only if it is discriminatorily targeted at an employee or group of employees because of their sex.  The harassment must also be severe and pervasive so as to create a work environment that is hostile or abusive.  The same is true of vulgar language and sexually graphic visual displays.  [Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 273-274.]

A contrary decision would have limited free speech rights, and would have made California employers responsible for protecting employees from all manner of offensive speech they might be exposed to in the course of their job.

Practical Tips for Employers

❏  Warn applicants and employees about potentially offensive speech, preferably in writing.

❏  Have employees sign an acknowledgment form.

❏  Encourage employees to report inappropriate sexual speech or conduct.

❏  Implement effective complaint procedures.

❏  Conduct a prompt investigation of any complaints.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.