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Writing television comedy is dirty work. So dirty that crass behavior and vulgar jokes may be an acceptable part of the creative process, rather than a hostile work environment, a state court of appeal ruled. In a unanimous May decision, Second District Court of Appeal justice Earl Johnson, Jr., held that it’s up to a jury to determine whether the writers of the hit TV sitcom Friends were justified in regularly talking in a sexual nature about female cast members, pretending to masturbate during meetings, and making sexually explicit drawings. The writers, along with the television studios responsible for Friends, are being sued by a former writers’ assistant who alleges that she was subjected to sexual and racial harassment while working for the show. Calling the defendants’ “creative necessity” argument “unique in the annals of sexual harassment litigation,” Johnson acknowledged that it nevertheless could be legitimate. “To the extent defendants can establish 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, defendants may be able to show their conduct should not be viewed as harassment,” Johnson wrote in Lyle v. Warner Brothers Television Productions. But Adam Levin, a Los Angeles attorney representing the writers and studios, says that the mere fact of allowing a jury to determine whether or not the behavior was appropriate could set a dangerous precedent. “Everybody knows that the show Friends deals with adult subject matter,” says Levin. “It’s axiomatic that if the show deals with that subject matter, then the writers have to discuss and joke about sex and body parts and so forth.” If the decision is upheld, he says, writers of all types � even reporters � could be hauled into a jury and forced to defend work-related conversations. Levin said the legal team was considering all its options, including seeking review at the California Supreme Court. Attorneys for the plaintiff did not return calls for comment. The suit provides an intriguing behind-the-curtain look at one of television’s most successful comedies. According to the suit, the show’s writers regularly and openly told “blow-job stories,” and mimicked “black ghetto talk.” One writer apparently had a coloring book depicting female cheerleaders with their legs spread apart, to which he would pencil in breasts and vaginas during meetings. “A constant banter went on between Malins and Chase [two writers] about how Chase could have ‘fucked’ one of the female actors but missed his chance,” Johnson relates in the opinion. The two writers “also frequently made crude, graphic references to the supposed infertility of another female actor.” Johnson notes that the creative necessity argument has its limits. An employee could not be fondled or kissed in the interest of developing a love scene, he explains. And offensive or demeaning remarks personally directed at another writer would also be out of bounds. “Within such limits, however, defendants may be able to convince a jury the artistic process for producing episodes of Friends necessitates conduct which might otherwise be unacceptable in other contexts.” Amaani Lyle filed suit in 1999, claiming that she was discriminated against because she is African American and a woman, and was fired for her insistence that more African Americans be featured on the show. She also alleged that she was harassed. A trial court dismissed all of Lyle’s claims on summary judgment, and awarded the defendants more than $400,000 in attorneys’ fees, deeming the case frivolous. On appeal, Johnson affirmed the dismissal of the discrimination and retaliation claims. Lyle was terminated, he wrote, because she couldn’t type fast enough, a primary responsibility of the writers’ assistant job. And the fact that a white writers’ assistant was fired for the same reason around the same time is strong evidence, he found, that Lyle was not subject to disparate treatment. But the court reversed the trial court’s dismissal of the harassment claim, holding that the behavior that Lyle was subjected to could constitute harassment, and that it was not automatically excused because it occurred in the context of a special workplace. The harassment claims were sent back to trial court. Horowitz also reversed a $415,800 attorneys’ fees award, since under the appeal decision neither party prevailed. A version of this story originally appeared in The Recorder, a sibling publication of Corporate Counsel.

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