Considered Sexual Harassment
The California Supreme Court recently found that sexual banter may NOT amount to sexual harassment; however,
the social context must be considered. This ruling was made in relation to the lawsuit filed by a four month
employee hired to work on “Friends” as a comedy writer assistant who alleged, after she was fired for poor
performance, that she was subjected to hostile work environment sexual harassment because she was exposed to
sexual banter and other sexually vulgar behavior by the writers - none of which was directed at her personally. The
Assistant acknowledged she was warned when she was hired that explicit sexual discussions would occur as this
was a theme in the television program and stated she would have no problem with such workplace conduct.
The Assistant sued for hostile work environment sexual harassment but was unsuccessful in convincing the Court
that she was the victim of any harassing conduct. The Court held that no reasonable jury could conclude that the
Assistant was subjected to “severe and pervasive” sexual harassment on account of her sex.
In order to have a viable claim of sexual harassment, “severe and pervasive conduct” must be established.
The Court stated that while California law prohibits harassing conduct that creates a work environment that is
hostile or abusive on the basis of sex, it does not outlaw sexually coarse and vulgar language or conduct that merely
offends.
The decision took into account that none of the conduct was directed at the Assistant personally so that there was
no evidence that the conduct engaged in was for the purpose of making the Assistant uncomfortable, self-conscious
or to intimidate, ridicule or insult her.
In addition, the Court noted that the sexual banter had a “purpose” in that it was engaged in as a means to generate
jokes for the show. Allegations of sexual harassment must be viewed in the social context of the workplace as the
laws prohibiting harassment due not impose a “civility code... designed to rid the workplace of vulgarity.” The
Court did caution employers to not interpret this case as permission to engage in vulgar conduct and further stated
that the Court did not intend to “suggest that the use of sexually coarse and vulgar language in the workplace can
never constitute harassment because of ‘sex’.” The context of each situation has to be examined.
What Should You Do?
• Implement a policy of zero tolerance against sexual banter, humor or vulgar language in the
workplace. While isolated incidents can seem insignificant they can cumulatively arise to hostile
work environment sexual harassment.
• Take prompt and remedial corrective action if employees engage in sexual banter, profanity or
vulgar language (including monitoring emails).
