What would Rachel say?


By Harvey A. Silverglate

The Wall Street Journal, August 4, 2004

Free speech “paranoids” have long warned that sexual harassment law is mushrooming out of control. Well, that fear has just been vindicated in an episode that’s as bizarre as it is disconcerting. Scriptwriters for the TV series “Friends” are being sued, successfully so far, for — get this — engaging in bawdy banter while devising script ideas for the sit-com.

In the 1980s, regulations were enacted outlawing the creation of a “hostile work environment.” Narrow at first, they outlawed only “harassment” directed at individuals because of race or gender that was repeated, pervasive, and so severe as to make it impossible for a person to perform a job. First Amendment worrywarts were assured that the regulations would never interfere with constitutionally protected speech.

But the “Friends” lawsuit, Lyle v. Warner Brothers Television Productions, is proof of how “hostile environment” law has spawned a right not to be offended at work if one belongs to a designated list of “protected” groups — a “right” so absolute that cases like Lyle allow punishment even of workplace discussion that’s central to the professional mission of an enterprise.

Amaani Lyle, a black woman, took a job as a scriptwriters’ assistant at Warner Brothers, working with the “Friends” crew. A crucial duty was to take notes for writers when they discussed story lines. Her notes were then combed for script material. She was legitimately fired, the court noted, because she couldn’t type fast enough. Yet it allowed her, after nixing a racial discrimination claim, to sue for sexual harassment. Why? Because she had to attend sessions at which writers tossed around “lewd, crude, vulgar jokes and comments in the writers’ room” as part of the creative process of scripting “a show about the lives of young sexually active adults” (as the court characterized “Friends”).

The trial judge had dismissed her claim because the offensive speech was not directed at her personally and was geared to create an atmosphere conducive to producing script ideas. Not so, said the Court of Appeal that reinstated her claim. “A woman may be the victim of sexual harassment if she is forced to work in an atmosphere of hostility or degradation of her gender.” If she has to work in an atmosphere that “sufficiently offends” her “so as to disrupt her emotional tranquility in the workplace,” that’s the equivalent of depriving her of her opportunity to work. Ms. Lyle “was a captive audience.” In other words, by performing the very job for which she’d applied, she was unwillingly exposing herself to the offensive atmosphere that constituted gender discrimination.

The California Supreme Court gave civil libertarians hope when, last month, it agreed to review the decision. If it fails to reverse, the workplace will join the college campus as a place where some are entitled to the comfort of not having their sensibilities challenged, while others suffer arbitrary censorship.

The writers pointed out that they shouldn’t be penalized where they felt required to tell colorful jokes “as part of the creative process.” The court disagreed and ruled that the jurors would decide “whether defendants’ conduct was indeed necessary to the performance of their jobs.” How is the jury to do this? By deciding whether the writers had “no alternative to these sexual brainstorming sessions.” After all, noted the court, the creative necessity defense would not justify writers’ assistants being “kissed, fondled or caressed in the interests of developing a ‘love scene’ between the characters.”

So, banter is akin to sexual assault. What’s more, the burden is on the writers “to convince a jury the artistic process for producing . . . ‘Friends’ necessitates conduct which might be unacceptable in other contexts.” They’d have to convince jurors that “the recounting of sexual exploits, real and imagined, the making of lewd gestures and the displaying of crude pictures denigrating women was within ‘the scope of necessary job performance’ and not engaged in for purely personal gratification or out of meanness or bigotry or other personal motives.”

It was a frighteningly simple step for harassment law to go from punishing actions to punishing words. Here, we glimpse the next plateau — punishing bad thoughts. Stay tuned.

Mr. Silverglate is a director of the Foundation for Individual Rights in Education, which signed an amicus brief in the Lyle case.