Judicial Notebook

In April 2006, the California Supreme Court decided a sexual harassment case in which a former writer's assistant for the television show "Friends" sued the show's writers. Plaintiff Amaani Lyle alleged that the writers told stories of their personal sexual exploits, shared vulgar sexual fantasies of the actresses on the show, drew sexual drawings and pantomimed masturbation during brainstorming sessions. Lyle claimed that the behaviors created a hostile work environment.

The Appeals Court determined that the writers' behaviors, although inappropriate in many workplaces, were required for their jobs. The Appeals Court found that "creative necessity" should be included in the "totality of circumstances" considered as part of the determination of whether sexual harassment occurred. Accordingly, the California Supreme Court found that: "Based on the totality of the undisputed circumstances, particularly the fact the 'Friends' production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes...we find no reasonable trier of fact could conclude these particular comments were severe enough or sufficiently pervasive to create a work environment that was hostile." Courts have long considered the workplace "context" in sexual harassment cases (see Oncale v. Sunowner), giving some types of occupations more leeway in allowable behavior. The "Friends" case is an example of how context can make it difficult for a plaintiff to establish a case of harassment. The defendants' claim that their behaviors were "creative necessity" may encourage decision-makers (e.g., judges and jurors) to rely on a number of psychological processes affecting the viability of similar sexual harassment claims. Psychological theories and research could inform the courts on why the creative necessity exception might make it difficult for plaintiffs to mount a successful sexual harassment claim in this situation.

For example, the "creative necessity" claim may trigger hindsight bias in jurors. Decision-makers faced with the outcome (i.e., the exposure to such behaviors) may be more likely to think that outcome was certain. Although the defendants claim that sexual dialogue, gestures and drawings were necessary to do their jobs as writers of a sexually natured show, many of the writers' behaviors and dialogue were more extreme than any story line permissible on prime-time network television and many had debatable connections to storyline development. Applicants for this type of job might not realize the extent of the vulgarity to which they would be exposed. However, a legal decision-maker evaluating the events after the fact might in hindsight feel that the experience was likely to happen. Decision-makers may also feel that people in a sexually charged workplace willingly assumed the risk of exposure to explicit material when accepting their jobs. Because jurors may in hindsight feel that any brainstorming activity among "Friends" writers would likely include sexual content, jurors could feel that a plaintiff assumed a risk of being exposed to sexual material, even though this content could be potentially more extreme than what would be necessary to perform the job.

Hindsight bias and a commonsense notion of "assumption of the risk" could lead decision-makers to blame the victim of harassment. Victim blame has been most frequently studied in the context of rape. "Rape myth acceptance" is a culturally based set of stereotypes and beliefs that describe what may happen to women if they allow themselves to be in certain areas or with certain people. In situations similar to Lyle's, the jury could think that a "Friends"-type work environment clearly would involve sexual dialogue. Therefore, plaintiffs could be blamed since they allowed themselves to be in that type of environment. Although the California Supreme Court furthered the notion that "context matters," it also may have encouraged future decisions based on psychological phenomena that will make it difficult even for deserving plaintiffs who worked in a "creative workplace" to succeed in a sexual harassment case. As long as decision-makers are considering the creative necessity of writing for a show with sexual themes, it may be difficult to demonstrate that sexual dialogue and humor were not just part of the job that a plaintiff willingly agreed to perform.

Unfortunately, there is little research testing the operation of these psychological theories in the sexual harassment context. Research should establish whether jurors consider the workplace environment and whether hindsight bias, commonsense assumption of risk and victim blame influence verdicts in such cases. Legal safeguards against these psychological biases should also be investigated, particularly for harassment claims from sexually charged work environments. Determining the decision-making processes and how to combat them at trial is essential if deserving victims are to succeed.

“Judicial Notebook” is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).