In this E-Update:

• California Supreme Court Rules on Friends Case
• Ninth Circuit Upholds Makeup/Grooming Policy
• Paul, Plevin Partners Recognized as Top Employment Lawyers

California Supreme Court Rules on Friends Case
May 2, 2006

Summary

As previewed in Paul, Plevin’s February 23, 2006 E-Update, the California Supreme Court recently issued a decision in the so-called “Friends” case, Lyle v. Warner Brothers Television Productions. This is one of the important employment cases that the Supreme Court is considering this term, and it gives employers a glimpse of hope.

In Lyle, a writer’s assistant for the popular TV show Friends sued the show’s producer for, among other things, creating a hostile work environment based on the sexual comments, discussion, and other acts that occurred in and out of script writing sessions for the show. The court concluded that the plaintiff had insufficient evidence to take her case to a jury.

Details

First, the court determined that the plaintiff had produced no evidence of a connection between her sex and the alleged inappropriate behavior. Importantly, the court stated that “it is the disparate treatment of an employee on the basis of sex – not the mere discussion of sex or use of vulgar language – that is the essence of a sexual harassment claim.” Notably, none of the conduct at issue in this case, including retelling sexual escapades and mocking masturbation, was directed at the plaintiff. Further, there was no evidence that the plaintiff would have been treated any differently had she been a man. To highlight this, the court mentioned the evidence showed that both female and male organs were referred to in derogatory terms. Finally, the court paid special attention to the context in which the case arose – creative brainstorming aimed at attempting to generate material for the show.

Second, the court concluded that the plaintiff failed to present evidence that the alleged harassment “permeated” her work environment sufficiently to meet the legal “severe or pervasive” standard. The court emphasized the significance of the creative nature of the workplace environment and its purpose of generating content for the show. In addition, the court stated that when, as here, the alleged comments and conduct are not directed at the plaintiff, she must witness it and it must be more offensive and more repetitive to meet the “severe or pervasive” standard for a hostile work environment claim. Finally, the court noted that the plaintiff had not previously complained about the conduct and was forewarned that the environment was sexually explicit before accepting the job.

What this means

This case highlights the importance of training supervisors and employees on inappropriate conduct in the workplace and thoughtfully investigating any complaints of harassment. Notably, the court placed great significance on the context in which these comments arose because it was an integral part of creating the product of the employer. The ruling should not, however, be interpreted to mean that a “machine shop” context or other environment more prone to sexual or vulgar language will be specially considered in a sexual harassment case. To the contrary, the important fact was that the discussions and conduct were related to the product of the employer and not the work environment in general. However, the case does provide a strong basis for employers to challenge hostile environment claims that are based on conduct that is not directed at the plaintiff, as under this decision, such a plaintiff must meet a high standard to establish the conduct is “severe and pervasive,” a key element of any hostile environment claim.

Ninth Circuit Upholds Makeup/Grooming Policy

An employer’s grooming policy requiring female employees only to wear makeup was recently put to the test by the federal appellate court with jurisdiction over California. (Jespersen v. Harrah’s Operating Company, 9th Circuit Court of Appeals, April 14, 2006.) The employer operated a casino and required its bartenders, men and women, to wear the same uniform of black pants, a white shirt and comfortable black shoes, but differed its policy for male and female grooming standards. Women were required to wear makeup, while men were prohibited from doing so. Men were required to have their hair cut above the collar, while women could wear their hair long.

Based on the makeup policy, a female bartender’s employment was terminated when she refused to wear makeup. She felt makeup was demeaning, degrading and interfered with her ability to do her job. She sued the employer in federal court under Title VII of the Civil Rights Act of 1964, alleging the makeup policy discriminated against women on the basis of sex, and required women to conform to a sexual stereotype as a condition of employment. The court found in favor of the employer. It found the employee failed to produce evidence that the employer’s grooming standards placed an unequal burden on women. The employee did not supply any documentation to the court of the relative cost and time for men and women to comply with the makeup and hair standards. Instead, she relied on her subjective reaction to the makeup policy, and her record as an exemplary employee.

The court rejected the sex stereotyping claim on the basis that the employee was not singled out, or treated differently from other bartenders. The court remarked that to hold otherwise would allow every grooming, apparel or appearance policy that an individual employee found personally offensive to be possible sex discrimination. The court determined that the employer’s uniform and grooming policy was gender neutral, distinguishing cases in which the employer required female employees to wear sexually provocative clothing. The court concluded that the touchstone for reviewing grooming standards is reasonableness; a makeup requirement must be seen in the context of the overall policies imposed on employees in the workplace.

What this means

First, the easiest solution is to avoid having any grooming policy at all if possible. Second, if a grooming policy is necessary to your business, make sure it does not create a disproportionate burden on either gender. Finally, have any grooming policy reviewed by legal counsel to determine if it contains any discriminatory aspects or risks.

PAUL, PLEVIN PARTNERS RECOGNIZED AS TOP EMPLOYMENT LAWYERS

Fred Plevin and Michael Sullivan were highlighted in the April 10, 2006 edition of The Recorder and callaw.com as “Hidden Gems” in California’s employment law bar. Based on surveys of corporate counsel, The Recorder (which also publishes callaw.com) selected four employment lawyers throughout the state – one from San Francisco, one from Los Angeles, and two from San Diego – to profile as top lawyers who do not practice with the state’s mega-firms. Click here for a copy of the article.

For 2007, Paul, Plevin is the only San Diego firm to have three employment lawyers listed in "The Best Lawyers in America." Rich Paul, Fred Plevin and Michael Sullivan are among a handful of defense-side San Diego employment lawyers selected by their peers to be included in this exclusive listing.

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The Friends Update was authored by Fred Plevin and Melissa Listug Klick. The Jesperson Update was authored by Fred Plevin and Martina Nagle. For more information, please contact Mr. Plevin, Ms. Nagle, Ms. Listug Klick or any Paul, Plevin attorney at 619-237-5200.

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