Offensive Language and Conduct in the Workplace

Dirty jokes and vulgar language in the workplace can be cause for concern for employers. However, the California Supreme Court recently addressed this topic and ruled that generally such conduct 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 rely on the Court's decision to 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. 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.

The Impact - When Sexual Language is Actionable

The Court's decision makes sexual language 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. The same is true of vulgar language and sexually graphic visual displays.

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

ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952), or by e-mail (geskridge@eskridgelaw.net.) Please visit our website at www.eskridgelaw.net or www.employmentattorneys.net.

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