Raunchy Talk Approved as Part of the "Creative Workplace" - Why Training Should Not Set Artificial and Dangerous Standards

According to the California Supreme Court, raunchy talk can sometimes be a necessary part of the job.  The court’s unanimous ruling in Lyle today threw out sexual harassment claims made by a former writers' assistant on the NBC hit television show "Friends." View details of the Friends sexual harassment case.

The case does not represent a “hall pass” to be vulgar in the workplace. Lyle highlights the relevance of context in evaluating sexual harassment claims. The Court emphasized that whether a work environment is sexually hostile can be determined only by looking at all of the circumstances, including the frequency, severity, and whether it unreasonably interferes with an employee's work performance. That means some employers may have more protection against harassment claims than others simply based on the type of work they’re doing. The "Friends'" writers successfully argued that their sex talk and antics were just part of the job.

So some “creative” workplaces will have lower “raunch” standards than others – for lack of a better term. This is hardly groundbreaking, as there are many jobs, including those outside of the entertainment industry, where exposure to sexual content is part of the gig. I just need to think back to the first sexual harassment case I worked on as an employment lawyer. Some of the evidence read like late night cable show script … 

The issues addressed in Lyle remind me of an important training lesson that applies to all industries: It is a serious mistake for programs to suggest that any sexual conduct or content in the workplace is automatically a violation of policy, and potentially the law. Some employers take this strong “hammer over the head” approach, hoping that by eradicating any hint of sex in the workplace, they will better educate employees, reduce risk and lower incidents. It does just the opposite.

Suggesting that employees can never touch one another (not even a friendly, consenting hug) or that any conversations about relationships and pop culture are off limits (no re-hashing last night’s episode of Desperate Housewives) creates a dangerous and artificial standard. It actually manifests risk on two levels: (1) hypersensitive employees feel that fairly innocuous incidents are “blatant harassment”, and (2)  the rest of the workforce resents being managed under a sanitized and unrealistic set of rules. The result is that nobody actually understands the true standards of prohibited harassment – which is what the training is supposed to be about. 

I think the worst example I have ever seen of an over-sanitized online training program presented the following scenario – Fred has a picture of his girlfriend on his desk from a recent tropical vacation. Fred’s girlfriend is wearing a bikini. Question: Does Fred’s picture contribute to hostile environment harassment? Answers: Definitely, Probably or No.  

Ok, stop laughing, and keep reading, because it gets better. 

The answer was “Probably.” (!!!) Needless to say, I found this shocking. The photo used in the online program showed a smiling woman in a bikini top. Other than the fact she was rather large-chested, it was neither vulgar nor explicit.  She even had on a sarong bottom – and a sun hat to boot. 

What message do you think that training example sent to employees? Answer: That any hint of sex, relationships or the human body, when present in the workplace, is “probably” harassment. That’s not the standard under any state or federal law, nor under any half decent harassment policy.

I feel bad for the HR department in companies using that training. I can only imagine the complaints they get.

Tags: AB 1825 & California Sexual Harassment Training, harassment training, sexual harassment, sexual harassment training, vulgar language, workplace behavior,