LYLE v. WARNER BROTHERS TELEVISION PRODUCTIONS

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Court of Appeal, Second District, Division 7, California.

Amaani LYLE, Plaintiff and Appellant, v. WARNER BROTHERS TELEVISION PRODUCTIONS et al., Defendants and Respondents.

No. B160528.

    Decided: April 21, 2004

Mark Weidmann, Los Angeles, and Scott O. Cummings for Plaintiff and Appellant. Adam Levin and Samantha C. Grant, Los Angeles, for Defendants and Respondents.

Defendants, producers and writers of a popular television show raise a unique defense to plaintiff's claim of sexual harassment.   Defendants admit the use of sexually coarse, vulgar and demeaning language in the workplace but maintain such language was essential to the creative process of developing scripts for the show.   For the reasons we explain in Part IV(C) of our opinion we conclude “creative necessity” is not an affirmative defense to a cause of action for sexual harassment but it is a factor a jury can consider along with other factors in determining whether defendants' conduct created a hostile work environment for the plaintiff.

We further hold the trial court erred in granting summary adjudication to some of the defendants on plaintiff's causes of action for sexual and racial harassment but correctly granted summary adjudication as to all defendants on her causes of action for termination and retaliation in violation of the Fair Employment and Housing Act (FEHA) and common law.   Finally, we reverse the order awarding attorney fees and vacate the award of costs for redetermination by the trial court.

FACTS AND PROCEEDINGS BELOW

When Lyle, an African-American woman, learned the producers of “Friends” were looking for writers' assistants for the upcoming season she applied for the position.   Two executive producers and writers on the show, Adam Chase and Gregory Malins, interviewed Lyle. She understood “one of the most important aspects of the job was taking very copious and detailed notes for the writers” when they were discussing story lines, jokes and dialog.   A writers' assistant had to be able “to sort through what was being discussed with the writers and pick out the dialog and jokes that were most likely to be used in the script[.]”  In order to perform these duties, Lyle understood, it was “extremely important” for a writers' assistant “to be able to type quickly.”   Lyle told Chase and Malins she could type “really, really fast” and stated on her job application she could type 80 words per minute.   On the recommendation of Chase and Malins, Lyle was hired as a writers' assistant on “Friends” in June 1999.   Lyle worked directly under Chase and Malins and at times for a supervising producer, Andrew Reich, who was also a writer on the show.   No one tested Lyle's typing speed before she was hired.

As we discuss more fully below, Lyle contends soon after she began working on the show she complained to Chase, Malins and other producers and writers about the fact “Friends” had no black characters.   She continued to make those complaints up to the day before she was fired.   Lyle also contends defendants subjected her to racial and sexual harassment through offensive and bigoted comments and jokes made by Chase, Malins, Reich and other writers during writers' meetings.   Defendants maintain Lyle was terminated for a legitimate, nondiscriminatory reason-poor job performance.   She was not able to type fast enough to keep up with the speed of the discussion at the writers' meetings.   As a consequence important jokes and dialogue were missing from her notes.   Defendants further maintain even if Lyle could prove offensive and bigoted comments and jokes were made in her presence during writers' meetings these comments and jokes were not severe or pervasive enough to create a hostile work environment as a matter of law.   Finally, defendants contend lewd, crude, vulgar jokes and comments in the writers' room were an indispensable means of developing gags, dialogue and story lines for “Friends” which is a show about the lives of young sexually active adults.

Chase and Malins terminated Lyle from her job as a writers' assistant four months after hiring her.

Lyle filed a complaint under the FEHA with the Department of Fair Employment and Housing (DFEH) alleging she had been terminated based on race and gender discrimination and in retaliation for complaining about the show's racial discrimination against African-American actors.   She later amended her FEHA complaint to allege claims of racial and sexual harassment.

After receiving a right-to-sue letter from the DFEH Lyle brought this action against organizations and individuals involved in the production and writing of “Friends” including Warner Brothers Television Productions, NBC Studios (NBC), Bright, Kauffman, Crane Productions (BKC), and producers-writers Chase, Malins and Reich.   Her first amended complaint alleges causes of action under the FEHA for race and gender discrimination, racial and sexual harassment and retaliation for opposing racial discrimination against African-Americans in the casting of “Friends” episodes.   The complaint also alleges common law causes of action for wrongful termination in violation of the public policies against racial and gender discrimination and retaliation for complaining about racial discrimination in violation of the FEHA.

The trial court granted the defendants' motions for summary judgment.   As to Lyle's causes of action under the FEHA the court ruled NBC and BKC were not Lyle's employers and therefore not liable on any cause of action.   Moreover Lyle's harassment claims were time barred and in any event she could not factually establish her claims of racial and gender discrimination, retaliation or harassment as to any defendant.   As to Lyle's common law causes of action for wrongful termination in violation of public policy the trial court ruled Lyle could not establish defendants terminated her based on race or gender discrimination or in retaliation for her complaints about such discrimination against African-American actors.   The court subsequently entered judgment for all defendants and awarded them $21,131 in costs.

In a post-judgment order the trial court awarded defendants jointly attorney fees in the sum of $415,800 on the ground the FEHA causes of action were “frivolous, unreasonable and without foundation.”

Lyle filed a timely appeal from the judgment and the post-judgment award of attorney fees.

We affirm the judgment in part and reverse it in part.   We agree the defendants are entitled to summary adjudication on Lyle's causes of action for termination based on race, gender and retaliation.   We conclude, however, triable issues of fact exist as to Lyle's causes of action for sexual and racial harassment against Warner Brothers, BKC, Chase, Malins and Reich.1  We further conclude the award of attorney fees to defendants jointly must be reversed and the award of costs must be vacated and recalculated by the trial court to reflect our partial reversal of the judgment.

DISCUSSION

I.-II.**

III. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER LYLE SUFFERED HARASSMENT “BASED ON SEX.”

 On the merits, defendants argue Lyle cannot prevail on her cause of action for sexual harassment in the workplace because she cannot establish two essential elements of this cause of action:  (1) “the harassment complained of was based on sex” and (2) “the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” 49  We disagree.   In this Part we explain there are triable issues of fact as to whether Lyle suffered harassment based on sex.   In Part IV below we explain there are triable issues of fact as to whether the alleged harassment was sufficiently severe and pervasive to impose liability on defendants.

Defendants contend in order for Lyle to establish the harassment she complains about was “based on sex” she must be able to show the allegedly harassing conduct was directed at her personally.   Not so.

A woman may be the victim of sexual harassment if she is forced to work in an atmosphere of hostility or degradation of her gender.   If an employer or supervisor engages in conduct which “sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being” the employer or supervisor engages in harassment based on sex.50

 In Fisher we held in order to state a cause of action for sexual harassment under the FEHA a plaintiff need not be a “direct victim” in the sense the harassment was directed at her personally.   We observed, “[t]o state that an employee must be the direct victim of the sexually harassing conduct is somewhat misleading as an employee who is subjected to a hostile work environment is a victim of sexual harassment even though no offensive remarks or touchings are directed to or perpetrated upon that employee.” 51  To further clarify the “based on sex” element of a harassment cause of action we stated:  “[O]ne who is not personally subjected to such remarks or touchings must establish that she personally witnessed the harassing conduct and that it was in her immediate work environment.” 52

In the present case, Lyle testified at her deposition that during the four months of her employment Chase, Malins and Reich continuously made crude sex-related jokes, disparaging remarks about women and pretended to masturbate in her presence.   This barrage of gender denigrating conduct occurred during writers' meetings which she had the duty to attend as a writers' assistant as well as in common areas such as the hallways and break room.53  Thus, Lyle's evidence shows she can meet Fisher's requirement “that she personally witnessed the harassing conduct and that it was in her immediate work environment.” 54

We find no merit in defendants' argument Chase, Malins and Reich did not discriminate against Lyle based on her sex but rather treated her “just like one of the guys.”   Because the FEHA, like Title VII, is not a fault based tort scheme, unlawful sexual harassment can occur even when the harassers do not realize the offensive nature of their conduct or intend to harass the victim.55

IV. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER THE CONDUCT HERE WAS SUFFICIENTLY SEVERE AND PERVASIVE TO CREATE A SEXUALLY HOSTILE WORKING ENVIRONMENT.

 Defendants contend Lyle cannot produce evidence from which a reasonable trier of fact could find “the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” 56  Again we disagree.

 “Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances.  [Citation.]  The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.

 “The factors that can be considered in evaluating the totality of the circumstances are:  (1) the nature of the unwelcome sexual acts or works ․;  (2) the frequency of the offensive encounters;  (3) the total number of days over which all of the offensive conduct occurs;  and (4) the context in which the sexually harassing conduct occurred.  [Citation.]” 57

 A. Lyle's Evidence Of Sexual Harassment.

At her deposition Lyle testified to the following conduct on the part of Malins, Chase and Reich in the writers' meetings she attended in the course of her employment on “Friends.”

Malins constantly referred to oral sex experiences he had had and his sexual fantasies involving female actors on the show.   He told the group when he and his wife fought he would get naked and they would never finish the argument.   Malins had a “coloring book” depicting female cheerleaders with their legs spread apart.   He would sit in the writers' meetings drawing breasts and vaginas on the cheerleaders and leave the book open on his desk and sometimes place it on other writers' desks.   Malins frequently used a pencil to alter portions of the name “Friends” on scripts so it would read “penis.”   A constant banter went on between Malins and Chase about how Chase could have “fucked” one of the female actors but missed his chance.   Malins and Chase also frequently made references to the supposed infertility of another female actor on the show and joked about her having “dried branches in her vagina” and a “dried up pussy.”   They would also speculate about sex between this actor and her boyfriend.   Malins frequently brought up his fantasy about an episode of the show in which one of the male characters enters the bathroom while a female character is showering and rapes her.

Reich frequently commented on his encounters with oral sex and how he wanted “someone who could give him a good blow job.”   He regularly used the word “schlong” which Lyle knew was a Yiddish word for penis.   He would talk about “schlonging this and schlonging that.”   When Reich and the other writers were working on a script for a New Year's episode Reich kept referring to “schlonging in the New Year” and using “schlong” in every other sentence.   Reich would also pretend to masturbate while walking around the writers' room and while sitting at his desk.   While walking around Reich would hold his hand as if gripping his penis and gesture with it as if masturbating.   While sitting at his desk he “would make little sounds” and then “react as though he was pleasuring himself.”

Chase regularly discussed with other writers his preferences in women-their hair color and bra cup size-and his preferences when having sex-getting right to intercourse and not “messing around with too much foreplay.”   He also stated he once “could have fucked” one of the female actors on the show.

Reich admitted at his deposition he had pantomimed masturbation in the writers' room during the time Lyle was employed on “Friends.”   He also agreed he and other writers discussed sexual conduct and foreplay in the writers' room and break room.   Reich also acknowledged he and others altered inspirational sayings on a calendar in the writers' room so that, for example, the word “persistence” became “pert tits” and “happiness” became “penis.”

In his deposition, Malins admitted he and other writers told “blowjob stories” in the writers' room.

Chase testified he had talked about his personal sexual experiences in the writers' room and that other writers had discussed their experiences with anal sex.   Chase also admitted on occasion gesturing as if he were masturbating.   He could not recall ever doing so when Lyle was present.58

 B. Lyle's Evidence Is Sufficient To Make A Prima Facie Case Of Sexual Harassment.

We conclude there is sufficient evidence from which a reasonable jury could find the writers' room on “Friends” was a hostile or offensive work environment for a woman.59

The evidence in the record shows Chase, Malins and Reich constantly engaged in discussions about anal and oral sex using the words “fuck,” “blowjob,” and “schlong,”

The evidence in the record shows Chase, Malins and Reich constantly engaged in discussions about anal and oral sex using the words “fuck,” “blowjob,” and “schlong,” discussed their sexual exploits both real and fantasized, commented on the sexual nature of the female actors on the show, made and displayed crude drawings of women's breasts and vaginas, pretended to masturbate and altered the words on the scripts and other documents to create new words such as “tits” and “penis.”   This conduct occurred nearly every working day of the four months Lyle spent on the show.

The Fair Employment and Housing Commission, which adopts regulations to implement the FEHA, has defined harassment under the FEHA to include “[v]erbal harassment, e.g., epithets, derogatory comments or slurs” as well as “[v]isual forms of harassment, e.g., derogatory posters, cartoons, or drawings [.]” 60

In addition, numerous court decisions have held evidence of misogynous, demeaning, offensive, obscene, sexually explicit and degrading words and conduct in the workplace is relevant to prove environmental sexual harassment.61  A jury could find the sexual conduct in this case particularly severe because Lyle was a captive audience.62  She had to be in the writers' room where most of the offensive conduct took place because her job required her to take notes on the writers' ideas for jokes, dialogue and story lines which Chase, Malins and Reich intermixed with their personal sex-related jokes, comments, remarks and gestures.

 C. The Trier Of Fact May Consider The Nature Of Defendants' Work In Determining Whether Their Conduct Created A Hostile Work Environment.

Defendants argue even if the admitted vulgar, crude and disparaging language used by Chase, Malins and Reich might support liability for sexual harassment in other contexts, it does not support liability here because “the writers were only doing their job.”   The writers' job, defendants explain, was to create jokes, dialogue and story lines for an adult-oriented situation comedy.   Because “ ‘Friends' deals with sexual matters, intimate body parts and risqué humor, the writers of the show are required to have frank sexual discussions and tell colorful jokes and stories (and even make expressive gestures) as part of the creative process of developing story lines, dialogue, gags and jokes for each episode.   Lyle, as a writers' assistant, would reasonably be exposed to such discussions, jokes and gestures.”   Therefore, defendants maintain, they are entitled to summary adjudication on Lyle's cause of action for sexual harassment because given the context of her employment she cannot establish she was subjected to a hostile working environment.

Defendants' argument appears to be unique in the annals of sexual harassment litigation.   Nevertheless we find defendants' theory of “creative necessity” has merit under the distinctive circumstances of this case and defendants are entitled to pursue their theory at trial.   Defendants are not entitled to summary adjudication, however, because “context” is only one factor to be considered in determining the existence of a hostile working environment and because there are triable issues of fact as to whether defendants' conduct was indeed necessary to the performance of their jobs.63

It is well settled the context in which the alleged harassment occurred is relevant in determining whether the defendants' conduct is sufficiently severe or pervasive to be actionable under the FEHA. As we recognized in Fisher, and as the United States Supreme Court held in Oncale v. Sundowner Offshore Services, Inc., the alleged sexual harassment must be viewed in the context in which it took place to determine whether the defendants' actions created an objectively hostile work environment.64  In Fisher we stated the factors to be considered in determining whether a work environment is hostile or abusive include the nature of the unwelcome sexual acts, the frequency of the offensive encounters, the total number of days over which the offensive conduct occurred and “the context in which the sexually harassing conduct occurred.” 65  In Oncale, the Supreme Court held an inquiry into the severity of the harassment “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” 66  The “real social impact of workplace behavior,” the court stated, “often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” 67

The Supreme Court again considered the nature of the plaintiff's work in Clark County School Dist. v. Breeden.68  The court recognized the nature of the work being performed is a factor to consider in evaluating the context of the alleged sexual harassment.   Breeden, her male supervisor and another male employee met to review psychological evaluations of several job applicants.   One of the evaluations reported the applicant had once said to a coworker, “ ‘I hear making love to you is like making love to the Grand Canyon.’ ”   The male supervisor read this comment aloud, looked at respondent and stated, “ ‘I don't know what that means.’ ”   The other male employee then said, “ ‘Well, I'll tell you later,’ ” and both men chuckled.69  The Supreme Court rejected Breeden's claim this incident constituted sexual harassment.   With respect to the “Grand Canyon” remark in the applicant's psychological report the court stated “[t]he ordinary terms and conditions of respondent's job required her to review the sexually explicit statement in the course of screening job applicants.” 70

In the present case the defendants argue the sexually explicit conversations in the writers' room were part of the nature of the writers' work and the terms and conditions of Lyle's job required her to be present during these conversations.

Defendants' “creative necessity” argument is analogous to the “business necessity” defense recognized in disparate impact cases under the FEHA.71 Under the business necessity defense, “the business purpose must be sufficiently compelling to override any racial impact;  the challenged practice must effectively carry out the business purpose it is alleged to serve;  and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial impact.” 72

Here, defendants argue the sexually explicit conversations among the writers were not gratuitous but had a compelling business purpose:  to generate ideas for jokes, dialogue and story ideas for the show which routinely contains sexual innuendos and adult humor and situations.   According to the defendants no alternative to these sexual brainstorming sessions exists.   As a writers' assistant tasked with taking notes on these jokes, dialogue and story lines Lyle had to be present during the entire session, even when the writers were discussing their personal sexual exploits or fantasies, because, as Malins explained, “you just never knew when something was going to pop up.”

Obviously the “creative necessity” defense has its limits.   For example, writers' assistants cannot be kissed, fondled or caressed in the interests of developing a “love scene” between the characters.   Nor would “creative necessity” justify lewd, offensive or demeaning remarks directed at the writers' assistants personally.   Within such limits, however, defendants may be able to convince a jury the artistic process for producing episodes of “Friends” necessitates conduct which might be unacceptable in other contexts.

Finally, our Supreme Court's definition of harassment supports the argument a defendant may answer a claim of sexual harassment with a claim of “creative necessity.”   In Reno v. Baird the court defined harassment as “ ‘conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.   Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.’ ” 73

Thus, to the extent defendants can establish the recounting of sexual exploits, real and imagined, the making of lewd gestures and the displaying of crude pictures denigrating women was within “the scope of necessary job performance” and not engaged in for purely personal gratification or out of meanness or bigotry or other personal motives, defendants may be able to show their conduct should not be viewed as harassment.

Triable issues of fact exist as to whether the conduct of Chase, Malins and Reich was a necessary part of their work in producing scripts for “Friends.”

Reich admitted to pantomiming masturbation in the writers' room during the time Lyle was employed there but asserted “[i]t's part of the creative process.” 74  Similarly, Malins defended telling stories in the writers' room about “blowjobs” and other sexual conduct on the ground these stories were necessary to developing scripts.   As an example, Malins testified an experience one of the writers had in which his tailor touched him on his genitals while measuring the inseam of his pants evolved into a story line in which two male characters on the show discuss how their genitals have been fondled by the same tailor.   Chase downplayed the sexual remarks and gestures which went on in the writers' room explaining they had to be viewed in context or they would “stand out more and seem more lecherous than our conversations ever became.”   Executive Producer Kauffman testified a writer's tale about receiving oral sex from a person in a wig he thought was a woman but was actually a man inspired a “Friends” episode in which a character is kissed in a dark bar by a person he thinks is a woman but who he later discovers is a man.   Kaufmann also testified writers' discussions of anal sex and foreplay have produced jokes or episodes about those subjects.

Lyle, on the other hand, testified much of the writers' offensive conduct had nothing to do with the show.   For example, no character on the show ever pantomimed masturbation or defaced calendars or documents to spell out slang words referring to sex.   Lyle also produced the Warner Brothers employee handbook which states:  “The company prohibits all forms of sexual harassment, including verbal, non-verbal and physical conduct.”   The handbook defines sexual harassment as “unwelcome conduct of a sexual nature, including ․ verbal, nonverbal or physical conduct of a sexual nature where ․ such conduct has the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile or offensive working environment.”   The handbook contains no exception for writers or producers developing stories for “Friends” or for conduct in the writers' rooms.

For the reasons explained above, we conclude the question whether defendants' conduct created a hostile working environment for Lyle is one to be determined by a jury.

V.-IX.***

DISPOSITION

As to defendants NBC Studios and Todd Stevens the judgment is affirmed as to all causes of action and reversed and remanded for redetermination of attorney fees.   The award of costs is reversed and remanded to the trial court for redetermination consistent with the views expressed in this opinion.

As to the remaining defendants the judgment is affirmed as to the causes of action for racial and gender discrimination and retaliation under the FEHA and wrongful termination in violation of public policy (causes of action one through six) and reversed as to the causes of action for racial and sexual harassment in violation of the FEHA (causes of action seven and eight).   The orders awarding attorney fees and costs are reversed.

NBC Studios and Stevens are awarded their proportionate share of costs on appeal.   The remaining parties are to bear their own costs on appeal.

Counsel for appellant are ordered to serve a copy of this opinion on the appellant within 10 days from the date this opinion becomes final as to this court and to file a proof of service with the clerk of this court.   The proof of service need not disclose the address where the opinion was served.

FOOTNOTES

1.   Lyle's evidence is insufficient to make out a prima facie case of discrimination or harassment as to NBC Studios or Stevens, thus we will affirm the judgment as to those two defendants.

FOOTNOTE.   See footnote *, ante.

49.   Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608, 262 Cal.Rptr. 842.

50.   Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 608, 262 Cal.Rptr. 842, internal citation and quotation marks omitted.

51.   Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 610, footnote 8, 262 Cal.Rptr. 842.

52.   Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 611, 262 Cal.Rptr. 842;  in accordance:  Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519-520, 76 Cal.Rptr.2d 547.   Contrary to the assertion by defendants, nothing we said in our later opinion in Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 124 Cal.Rptr.2d 1 contradicts Fisher.  Herberg merely noted by way of dictum in a footnote we had “serious doubts” about whether the facts in the record could support a finding the purported harassment was based on sex.  (Id. at p. 152, fn. 9, 124 Cal.Rptr.2d 1.) We have no such doubts in the present case.

53.   We detail this conduct in Part IV, post.

54.   Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 611, 262 Cal.Rptr. 842.

55.   Ellison v. Brady (9th Cir.1991) 924 F.2d 872, 880.

56.   Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 608, 262 Cal.Rptr. 842.

57.   Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at pages 609-610, 262 Cal.Rptr. 842, footnote and citations omitted.

58.   Defendants do not dispute Lyle's contention that if she can establish at least one of the foregoing acts occurred within the limitations period for DFEH complaints, see discussion in Part II ante, all of the acts would be admissible to prove sexual harassment under the continuing violations doctrine.   See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 111 Cal.Rptr.2d 87, 29 P.3d 175;  Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 112 Cal.Rptr.2d 347.

59.   In Fisher v. San Pedro Peninsula Hospital, supra, we held “when evaluating a sexual harassment claim, a reasonable employee is one of the same sex as the complainant.”  (214 Cal.App.3d at pp. 609-610, fn. 7, 262 Cal.Rptr. 842;  accord:  Ellison v. Brady, supra, 924 F.2d at page 878.)

60.   California Administrative Code, title 2, section 7287.6, subdivision (b)(A), (C).

61.   See, as just a few examples, E.E.O.C. v. Farmer Bros. Co. (9th Cir.1994) 31 F.3d 891, 897 and footnote 3 [supervisor made “foul comments” about female employees including the size of their breasts];  Kotcher v. Rosa and Sullivan Appliance Center, Inc. (2nd Cir.1992) 957 F.2d 59, 61 [supervisor pretending to masturbate];  Lipsett v. University of Puerto Rico (1st Cir.1988) 864 F.2d 881, 905 [Playboy centerfolds in school dining hall and meeting rooms];  Robinson v. Jacksonville Shipyards, Inc. (M.D.Fla.1991) 760 F.Supp. 1486, 1494 [“extensive, pervasive posting of pictures depicting nude women, partially nude women [and] sexual conduct”];  compare Ways v. City of Lincoln (8th Cir.1989) 871 F.2d 750, 753 [a racial harassment case in which racially offensive cartoons were posted on bulletin boards and racial jokes about blacks and American Indians were voiced in police officers' locker room and other locations].

62.   Robinson v. Jacksonville Shipyards, Inc. supra, 760 F.Supp. at page 1535.

63.   We find no merit in defendants' claim imposing liability for “pure” sexually harassing speech violates the First Amendment.   See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 135, 87 Cal.Rptr.2d 132, 980 P.2d 846 [“[W]e conclude ․ the First Amendment permits imposition of civil liability for past instances of pure speech that create a hostile work environment.”]

64.   Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 610, 262 Cal.Rptr. 842;  Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82, 118 S.Ct. 998, 140 L.Ed.2d 201.

65.   Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 610, 262 Cal.Rptr. 842.

66.   Oncale v. Sundowner Offshore Services, Inc., supra, 523 U.S. at page 81, 118 S.Ct. 998.

67.   Oncale v. Sundowner Offshore Services, Inc., supra, 523 U.S. at page 82, 118 S.Ct. 998.   It is not entirely clear whether the court was referring to the social context of conduct in the workplace or to the social context of the workplace itself or both.  (See id. at pp. 81-82, 118 S.Ct. 998.)   In any case the language quoted above supports our view the nature of the work, if not the workplace itself, may be a factor to be considered in determining a claim of sexual harassment.

68.   Clark County School Dist. v. Breeden (2001) 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509.

69.   Clark County School Dist. v. Breeden, supra, 532 U.S. at page 269, 121 S.Ct. 1508.

70.   Clark County School Dist. v. Breeden, supra, 532 U.S. at page 271, 121 S.Ct. 1508.

71.   FEHA regulations provide:  “Where an employer or other covered entity has a facially neutral practice which has an adverse impact (i.e., is discriminatory in effect) the employer or other covered entity must prove that there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business and that the challenged practice effectively fulfills the business purpose it is supposed to serve.”  (Cal.Admin.Code, tit.2, § 7286.7, subd. (b).)

72.   City and County of San Francisco v. Fair Employment & Housing Com. (1987) 191 Cal.App.3d 976, 989-990, 236 Cal.Rptr. 716.

73.   Reno v. Baird, (1998) 18 Cal.4th 640, 646, 76 Cal.Rptr.2d 499, 957 P.2d 1333, quoting from Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63, 53 Cal.Rptr.2d 741.

74.   Reich's statement gives new meaning to the term “abuse excuse.”

FOOTNOTE.   See footnote *, ante.

JOHNSON, J.

We concur:  PERLUSS, P.J., and WOODS, J.

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