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‘Creative workplace’ defense won’t beat harassment suit

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in Discrimination and Harassment,HR Management,Human Resources

Issue: A court ruling said sitcom writers have a "creative necessity" to engage in overtly sexual banter.

Risk: While the TV network was allowed to use this defense in a sexual harassment suit, it likely wouldn't work for your organization.

Action: Don't use this case as an excuse to lighten up on harassment. Remind managers to remain vigilant.

HR circles buzzed recently about a new court ruling that, for the first time, said an organization can defend a sexual harassment lawsuit by arguing that sexual discussions were a "creative necessity" in its workplace.

The ruling, which arose from the sexual banter used by writers of the hit TV show "Friends," gives you a bit of latitude to argue that the creative nature of your business should allow an increased level of otherwise inappropriate sexual discussions.

Our take: This new "creative necessity argument" has many limits and can be used only in very rare cases. For example, offensive or demeaning remarks personally targeted at a co-worker will still be deemed out of bounds. The key point: Courts will accept conduct that is genuinely within the scope of doing the job, not personally harassing conduct.

Recent case: Amaani Lyle, a writers' assistant on "Friends," was fired after four months on the job. She sued, saying the writers' conduct created a sexually hostile environment. Specifically, Lyle said the writers' meetings were filled with racially and sexually offensive comments, crude jokes and sexual gestures.

"Friends" producers argued that writers needed to have "frank sexual discussions and tell colorful jokes" to develop dialogue for the show. A state appeals court allowed Lyle's case to go to trial. And while the court said that "creative necessity" isn't an automatic sexual harassment defense, the court said a jury could consider that factor when deciding whether a hostile environment existed. (Lyle v. Warner Bros. Television, No. B160528, CA 2nd, 2004)

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