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Who Knows Whether Or When You May Say That?

I am perpetually behind the news cycle, but I see that the California Supreme Court ruled recently that sexual banter in the workplace at times is not verboten, but acceptable and even necessary. That is the essence of the recent ruling in the hostile environment lawsuit against the producers of the TV sitcom Friends, in which a former writers' assistant claimed that the crude bantering among the writers exchanging ideas for the show---the culture, so to speak---created an environment deeply offensive to her, or something. Throwing the lawsuit out, Justice Marvin Baxter ruled that "Most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace."

Really? Sorry, but I am confused; I am, after all, a lowly economist. Is that now the standard for infringement of free speech in the workplace? If I have in my office a large poster photo of a gorgeous starlet giving a speech on Iraq, in the nude, does that "involve" or is it "aimed at" other women in the office? What if I decide to test the color and sharpness of my new flat-screen monitor by downloading some of the finest porn that the world wide web has to offer? What if my door is closed?

I think I know the likely response of the plaintiff attorneys. And so my conservative/libertarian legal friends---whom I really do respect greatly---have it wrong, I think, in their applause for this decision. Some workplaces now are more equal than others. What would a reasonable person say, and then whom does the offensive speech involve or at whom is it aimed? This looks to me like a decision designed to increase the full-employment prospects of attorneys.

I suspect as well that the judges did not want to bear the criticism that would have proven attendant upon a decision that a jury might well decide that writers on a sexually-themed sitcom may not exchange sexual jokes. And that is the problem: We cannot get rid of bad law until we enforce it in all its absurd glory. This decision may be fine in a narrow sense, given the broader context of hostile environment law, but that is the point: It is that broader context that must be attacked.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.