Can employees harass co-workers in the name of ‘creativity’?

If your workplace has a "creative" side to it, listen up: A court has ruled for the first time that you can defend a sexual harassment claim by arguing a "creative necessity" defense.

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

But beware: This new "creative necessity argument" has its limits. For example, offensive or demeaning remarks personally targeted at a co-worker are 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 hold "frank sexual discussions and tell colorful jokes" as part of their job to come up with dialogue for the sitcom. A state appeals court allowed Lyle's case to go to trial.

And while the court said that such "creative necessity" isn't an automatic defense to sexual harassment lawsuits, it agreed that a jury could consider that factor when deciding whether the conduct created a hostile work environment. (Lyle v. Warner Bros. Television, No. B160528, CA 2nd, 2004)

Final note: Courts will look at the "totality of circumstances" when judging your liability in harassment lawsuits. To limit your liability, be able to prove that you have:

  1. A policy and practices to prevent harassment;
  2. a well-publicized complaint procedure that encourages people to come forward; and
  3. a history of effective response to your harassment complaints.