The recent, controversial California Supreme Court holding in Lyle v. Warner Brothers Television Productions is illustrative of whether the pervasiveness of sexually explicit conduct is insufficient as a matter of law or should be sent to the trier of fact. The court held that a former writer's assistant for the popular, adult-oriented television show Friends failed to establish actionable harassment under the California Fair Employment and Housing Act ("FEHA"). According to the court, the circumstances did not establish a prima facie case of hostile workplace environment sexual harassment, even though there was no dispute that sexually coarse and vulgar language was used regularly, physical gestures were expressed haphazardly, and offensive drawings were circulated openly in the Friends writers' meetings that the assistant was required to attend. In addition to holding that "a reasonable trier of fact could not find, based on the facts presented here, that members of one sex were exposed to disadvantageous terms or conditions of employment to which members of the other sex were not exposed," the court also found that the lewd and crude behavior of the writers was a necessary part of their job. "Due to the nature of the writers' work, the pervasive sexual atmosphere was necessary for the creative process of writing an 'adult' themed show."
Jessica N. Leal,
The Friends Creative Exemption: How Stereotypes Play a Role in Objectivity Standards,
31 Hastings Comm. & Ent. L.J. 283
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol31/iss2/4