Recent Developments in Law governing Sexual Harassment Cases

Two cases have recently issued - one by the United States Supreme Court, and the other by a California court of appeals - which address the types of affirmative defenses that may be legally recognized in sexual harassment cases.  In Pennsylvania State Police v. Suders, which issued in June of 2004, the Supreme Court clarified its earlier rulings setting forth circumstances under which an employer can rely on its complaint procedures and policies as an affirmative defense to claims of sexual harassment brought under Title VII of the Civil Rights Act of 1964.  In Lyle v. Warner Brothers Television Productions, which issued in April of 2004, the state appeals court addressed the question of whether the California Fair Employment and Housing Act ("FEHA") permitted an employer to defend against a sexual harassment claim on the basis of "creative necessity."

In the Suders case, the Court "followed the path marked by [its] 1998 decisions" in Burlington Industries, Inc. v. Ellwerth, 524 U.S. 742, and Faragher v. Boca Raton, 524 U.S. 775.  In those companion cases, the Court had set forth the contours of employer liability under Title VII for acts of sexual harassment allegedly committed by a supervisor or other agent.  The Court held that the employer can successfully defend against such claims if it can establish two elements: 1) that it exercised reasonable care in preventing and promptly correcting any sexually harassing behavior, and 2) that the plaintiff unreasonably failed to avail herself of the preventative or corrective opportunities or otherwise unreasonably failed to avoid the harm visited on her.  However, the Court also held that this two-pronged affirmative defense was not available to employers if the harassment complained of "culminates in a tangible employment action, such as discharge, demotion or unreasonable reassignment."  In Suders, the Court granted review to resolve a conflict among the federal circuit courts of appeal over the question of whether a "constructive discharge" constitutes a "tangible employment action" such as to preclude an employer from asserting the Ellwerth/Faragher affirmative defense. 

The Court concluded that a "constructive discharge" was not a "tangible employment action" for purposes of this defense.  While recognizing that "constructive discharge" is a viable theory of recovery for a plaintiff who successfully shows that he or she was exposed to working conditions so intolerable that any reasonable person in the plaintiff's position would have felt compelled to quit, the Court did not believe it appropriate to apply this theory in a manner that would essentially deprive the employer of the chance to show that the victim had an opportunity to complain to management about sexual harassment but instead quit.  Such a result would be at odds with Title VII's "deterrent purpose[s] [of] encouraging employees to report harassing conduct before it becomes severe or pervasive." 

In the Warner Brothers case, the plaintiff was a writers' assistant for "Friends," a highly successful television series.  Part of the plaintiff's job was to attend creative meetings and take careful notes when the writers were discussing story lines, jokes and dialog.  The plaintiff maintained that during these meetings the writers pretended to masturbate in her presence, made sexually crude and offensive comments, and disparaging remarks about women. 

While acknowledging that some of the plaintiff's allegations were true, the employer raised what the court characterized as a defense that "appears to be unique in the annals of sexual harassment litigation."  Essentially, the defense was that the comments and conduct engaged in by the writers was a required part of the "creative process of developing story lines, dialogue, gags and jokes" for "Friends," which was an adult comedy series dealing with sexual matters, intimate body parts and risqué humor.  The employer argued that plaintiff, as a writers' assistant, would reasonably be exposed to such discussions, jokes and gestures as part of her job in taking notes during the process; therefore, she should not be able to recover on her sexual harassment claim. 

Although the court denied the employer's summary judgment motion, it did not dismiss the defense out of hand.  In fact, the court found that the  "creative necessity" defense "had merit under the distinctive circumstances of th[e] case," and that the employer was  entitled to pursue this theory at trial.  In reaching this conclusion, the court relied both on federal and state law precedents which have held that, in determining whether particular behavior meets the definition of sexual harassment, "careful consideration" must be given to the "social context in which [the] behavior occurs and is experienced by its target." 

A careful reading of the Warner Brothers case indicates that the "creative necessity" defense will have only limited application in unique work settings such as those in the entertainment industry; nevertheless, it should be kept in mind that the "social context" in which behavior occurs is always a consideration when defending against a sexual harassment case under either Title VII or FEHA. 

Persons wishing further information or who have questions or comments about either this case or any of the cases that have appeared on this website can contact any of the attorneys at Epstein, Turner & Song.