Lyle v. Warner Bros. Television Productions, No. S125171.

• Court: United States State Supreme Court (California)
• Writing for the Court: Baxter
• Citation: 42 Cal.Rptr.3d 2,132 P.3d 211,38 Cal.4th 264
• Parties: Amaani LYLE, Plaintiff and Appellant, v. WARNER BROTHERS TELEVISION PRODUCTIONS et al., Defendants and Respondents.
• Decision Date: 20 April 2006
• Docket Number: No. S125171.

42 Cal.Rptr.3d 2 38 Cal.4th 264 132 P.3d 211 Amaani LYLE, Plaintiff and Appellant,
v.
WARNER BROTHERS TELEVISION PRODUCTIONS et al., Defendants and Respondents. No. S125171. Supreme Court of California. April 20, 2006.

[42 Cal.Rptr.3d 4]

Mark Weidmann, Los Angeles, and Scott O. Cummings, Long Beach, for Plaintiff and Appellant.

Law Offices of Jeffrey K. Winikow and Jeffrey K. Winikow, Los Angeles, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Russell K. Robinson, El Cajon, for Law Professors Cynthia G. Bowman, Devon Carbado, Kimberlé Crenshaw, Laura Gomez, Cheryl Harris, Kenneth L. Karst, Charles J. Ogletree, Deborah L. Rhode, Dorothy E. Roberts, Russell K. Robinson,

[42 Cal.Rptr.3d 5]

Leti Volpp, Adam Winkler, Kimberly A. Yuracko and Noah Zatz as Amici Curiae on behalf of Plaintiff and Appellant.

Patricia A. Shiu, Claudia Center, San Francisco, Shelley A. Gregory and Elizabeth Kristen for The Legal Aid Society-Employment Law Center, Asian Law Caucus, California Women's Law Center and Equal Rights Advocates as Amici Curiae on behalf of Plaintiff and Appellant.

Mitchell Silberberg & Knupp, William L. Cole, Adam Levin, Douglas W. Bordewieck and Samantha C. Grant, Los Angeles, for Defendants and Respondents.

Loeb & Loeb, Douglas E. Mirell, Carla Feldman and Joseph Geisman, Los Angeles, for Feminists for Free Expression and Women's Freedom Network as Amici Curiae on behalf of Defendants and Respondents.

Horvitz & Levy and Frederic D. Cohen, Encino, for Alliance of Motion Picture and Television Producers, Center for Individual Rights, the Foundation for Individual Rights in Education, Los Angeles Advertising Agencies Association, Motion Picture Association of America, Inc., the National Association of Scholars, Rubin Postaer and Associates and the Student Press Law Center Inc., as Amici Curiae on behalf of Defendants and Respondents.

Marshall M. Goldberg for the Writers Guild of America, West, Inc., The Directors Guild of America, the Screen Actors Guild, Sybil Adelman, Kate Angelo, John Auerbach, Ron Bass, John Beck, Steven Bochco, John Bowman, Yvette Lee Bowser, Sally Bradford, Pam Brady, John Brancato, Adam Brooks, James L. Brooks, J. Stewart Burns, James Burrows, Jason Cahill, Frank Kell Cahoon, Larry Charles, Joel Cohen, Jon Collier, Kevin Curran, Carlton Cuse, Larry David, Elias Davis, Nastaran Dibai, Marc Dube, Ted Elliot, Diane English, Mike Ferris, Greg Fitzsimmons, Terry Curtis Fox, John Furia, Jr., Shannon Gaughan, Will Gluck, Gary David Goldberg, Carl Gottlieb, Jeff Greenstein, Rick Groel, Ellen Guylas, Karen Hall, Charlie Hauck, Alex Herschlag, Jeffrey Hodes, David Isaacs, Gary Janetti, Al Jean, Chip Johannessen, Irma Kalish, Kourtney Kang, Nick Kazan, Barry Kemp, Laura Kightlinger, Robert King, John Kinnally, David Koepp, Pang-Ni Landrum, Dale Launer, Bill Lawrence, Norman Lear, Peter Lefcourt, Gail Lerner, Ken Levine, Tim Long, Don Mankiewicz, Myles Mapp, Jhoni Marchinko, Jeff Martin, Craig Mazin, Jeff Melvoin, Aaron Mendelsohn, Carol Mendelsohn, George Meyer, Joan Meyerson, David Milch, Miles Millar, Jay Moriarty, Theresa Mulligan, Bob Nickman, Peter Noah, Bill Odenkirk, Lawrence O'Donnell, Tim O'Donnell, Carolyn Omine, Daniel Palladino, J. Stanford Parker, Don Payne, Daniel Petrie, Jr., David Pollock, Elaine Pope, Tracy Poust, Michael Price, Max Pross, Matt Pyken, Tad Quill, Mike Reiss, Adam Rodman, Howard Rodman, Fred Rubin, Diane Ruggiero, Jeff Schaffer, James Schamus, Stephen Schiff, Tom Schulman, Lisa Seidman, Matt Selman, David Seltzer, Tom Shadyac, Ed Solomon, Jonathan Stark, Mark Stegemann, Doug Steinberg, Gardner Stern, Matt Stone, Kathy A. Stumpe, Rob Thomas, Scott Thompson, Mike Tollin, Patric Verrone, David Walpert, Matt Warburton, Sonja Warfield, Eric Weinberg, David Weiss, John Wells, Mike White, Matthew Wickline, Larry Wilmore, Marc Wilmore, Terence Winter, Bill Wrubel and Elisa Zuritsky as Amici Curiae on behalf of Defendants and Respondents.

Sonnenschein Nath & Rosenthal, Michael A. Bamberger, Martin J. Foley and Mark T. Hansen, Los Angeles, for American Booksellers Foundation for Free Expression, Association of American Publishers, Inc., Comic Book Legal Defense Fund, Freedom to Read Foundation and Publishers

[42 Cal.Rptr.3d 6]

Marketing Association as Amici Curiae on behalf of Defendants and Respondents.

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Los Angeles; Thomas W. Newton, Sacramento; Lucy A. Dalglish; Harold L. Fuson, Jr., Judith Fanshaw, La Jolla; Karlene W. Goller, Los Angeles; Peter Scheer, San Francisco; Levine Sullivan Koch & Schulz, James E. Grossberg; Cohn and Marks and Kevin M. Goldberg for California Newspapers Publishers Association, The Reporters Committee for Freedom of the Press, The Daily Journal Corporation, The Copley Press, Inc., Los Angeles Times Communications LLC, California First Amendment Coalition, Freedom Communications, Inc., and The American Society of Newspaper Editors as Amici Curiae on behalf of Defendants and Respondents.

Pillsbury Winthrop, Pillsbury Winthrop Shaw Pittman, George S. Howard, Alicia I. Mead, San Diego; Law Offices of Steven Drapkin and Steven Drapkin for The Employers Group and The California Employment Law Council as Amici Curiae on behalf of Defendants and Respondents.

Law Offices of Manuel S. Klausner and Manuel S. Klausner, Los Angeles, for Individual Rights Foundation, Reason Foundation and Libertarian Law Council as Amici Curiae on behalf of Defendants and Respondents.

James E. Holst, Oakland, Jeffery A. Blair and Christopher M. Patti, Oakland, for The Regents of the University of California as Amicus Curiae.

BAXTER, J.

38 Cal.4th 271

Plaintiff was a comedy writers' assistant who worked on the production of a popular television show called Friends. The show revolved around a group of young, sexually active adults, featured adult-oriented sexual humor, and typically relied on sexual and anatomical language, innuendo, wordplay, and physical gestures to convey its humor. Before plaintiff was hired, she had been forewarned that the show dealt with sexual matters and that, as an assistant to the comedy writers, she would be listening to their sexual jokes and discussions about sex and transcribing the jokes and dialogue most likely to be used for scripts. After four months of employment,

38 Cal.4th 272

plaintiff was fired because of problems with her typing and transcription. She then filed this action against three of the male comedy writers and others, asserting among other things that the writers' use of sexually coarse and vulgar language and conduct, including the recounting of their own sexual experiences, constituted harassment based on sex within the meaning of the Fair Employment and Housing Act (the FEHA) (Gov.Code, § 12900 et seq.; all further statutory references are to this code unless otherwise indicated).

The Court of Appeal reversed the trial court's order granting summary judgment on plaintiff's sexual harassment action. We granted review to address whether the use of sexually coarse and vulgar language in the workplace can constitute harassment based on sex within the meaning of the FEHA, and if so, whether the imposition of liability under the FEHA for such speech would infringe on defendants' federal and state constitutional rights of free speech.

Here, the record discloses that most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace. Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted

42 Cal.Rptr.3d 7

harassment directed at plaintiff because of her sex within the meaning of the FEHA. Furthermore, to the extent triable issues of fact exist as to whether certain offensive comments were made about women other than plaintiff because of their sex, we find no reasonable trier of fact could conclude these particular comments were severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA. Accordingly, we remand the matter with directions to affirm the summary judgment order insofar as it pertains to plaintiff's sexual harassment action, without addressing the potential of infringement on defendants' constitutional rights of free speech.

FACTUAL AND PROCEDURAL BACKGROUND

After receiving a right to sue letter from the Department of Fair Employment and Housing, plaintiff Amaani Lyle filed this action against organizations and individuals involved in the production and writing of the popular adult-oriented Friends television show, including Warner Bros. Television Production (WBTV), NBC Studios (NBC), Bright, Kauffman, Crane Productions (BKC), and producers-writers Adam Chase, Gregory Malins, and Andrew Reich. Her first amended complaint alleged causes of action under the FEHA for race and gender discrimination, racial and sexual harassment, and retaliation for opposing race discrimination against African-Americans in the

38 Cal.4th 273

casting of Friends episodes. The complaint also alleged common law causes of action for wrongful termination in violation of the public policies against race and gender discrimination and retaliation for complaining about race discrimination in violation of the FEHA.

After engaging in discovery, defendants moved for summary judgment and summary adjudication. The trial court granted the motion, ruling: (1) NBC and BKC were not plaintiff's employers and therefore were not liable on any FEHA cause of action; (2) plaintiff's FEHA harassment claims were time-barred; (3) plaintiff could not, in any event, factually establish her FEHA claims of race and gender discrimination, retaliation, or...