The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Monday, November 15, 2004

That Friends harassment case again

Following up yesterday's piece, I read the Appeal Court opinion.

The part dealing with the free speech element of the case starts on page 30. The defendants' argument is that
Because "'Friends' deals with sexual matters, intimate body parts and risqué humor, the writers of the show are required to have frank sexual discussions and tell colorful jokes and stories (and even make expressive gestures) as part of the creative process of developing story lines, dialogue, gags and jokes for each episode. Lyle, as a writers' assistant, would reasonably be exposed to such discussions, jokes and gestures..."

The Court says (p31)
Defendants' argument appears to be unique in the annals of sexual harassment litigation.

It says
we find defendants' theory of "creative necessity" has merit
but refuses to apply it on summary judgment
because there are triable issues of fact as to whether defendants' conduct was indeed necessary to the performance of their jobs.

On the First Amendment, it cites Aguilar v Avis Rent A Car [1] in saying that it is not applicable to harassing speech in the workplace [2].

The Friends case also turns up a nugget on the fraught issue of the current usage of cunt (previously discussed on October 29): whether Bright Kauffman Crane Productions [3] were proper defendants (as employers of Lyle) requires a consideration of the degree of control exercised.

On which the Court says (p41):
Furthermore, a reasonable jury could infer from Kaufman's testimony she had control over what the writers said and did in the writers' room... This inference arises from Kaufman's deposition in which she stated: "There is a word
that I find offensive. I don't allow it in the [writers'] room. . . . It's one of those words that people use for the female genital area, that is never used when I'm in the room. . . . It's a word I hate, it's an ugly word, and people don't use that term when I'm in the room."

Lyle in her complaint is rather more specific (para 70):
[Named writers] would also use and refer to women as "cunts", but Marta Kauffman didn't approve of that word, so they wouldn't use it when she was in the room.

And, as if that wasn't enough, in para 71 she says:
[Named writer] once called Mara (sic) Kauffman a cunt in a phone conversation with me on a weekend while I was at home.

Uh oh...

  1. The Court of Appeals, rather than the California Supreme Court decision in the case - I'm not sure why.

  2. It looks from a search on one of the articles mentioned in the Aguila opinion that there is a fair amount from the legal journals on the subject available to the Great Unwashed. It's a speciality of one of the Volokh's, I see...

  3. The opinion misspells the woman's name as Kaufman...

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