Let’s Talk About Sex

Let’s Talk About Sex

“Yo, I don’t think we should talk about this
(Come on, why not?)
People might misunderstand what we’re tryin’ to say, you know?
(No, but that’s a part of life)”
– Salt-n-Pepa

The rash of sexual harassment accusations and related resignations and firings of high profile people (and, we can presume, lower profile people) raises yet again the question of when and whether people can talk about sex or engage in other raunchy talk in the workplace.

Should you talk about sex in the workplace? Of course!*

If you work for a company that sells sex, go right ahead and talk about sex in the workplace. Provided, of course, that you are talking about your company’s business, or its products, or otherwise doing something that’s required by your job.

Some years ago, I did work for a men’s magazine that featured articles and photographs that were sexually charged. (Sex sells, after all.) The photo editor told me, “I yell down the hall, ‘I need more boobs!'” She wanted to know if that was ok, or if she was engaging in sexual harassment.

I told her that, if she was saying she needed more cleavage in the photos, this was ok. If, however, she was talking about herself or something personal, it was not.

Here in Los Angeles, there is a company (actually there are a few) that produces print and video featuring naked women. The walls of the company’s office are adorned with photos from the magazines. The magazines themselves are in the lobby waiting area and in employees’ offices. Does the presence of that many pictures of nude women create a unlawfully hostile work environment? My answer to that question is no. The photos on the walls and the magazines on tables and desks are the company’s product. Conversations about the photos and magazines that are limited to work topics also would be ok. But the moment that an employee starts to talk about their personal sexual attraction to one of the models, or what they might hope to do with that model, the conversation crosses the line to one the creates an unlawful hostile environment based on sex.

The California Supreme Court decided this issue eleven years ago, in Lyle v. Warner Brothers Television Prods. Lyle was a writers’ assistant on the show “Friends.” The Court held that, the “Friends” writers’ room was a workplace where writers were paid to create adult-themed sexual humor and jokes. The court characterized the “Friends” writers’ room as a “creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes.” Therefore, the Court held that sexual talk in the context of brainstorming about and writing scripts — i.e., in the work done in the writers’ room — did not amount to unlawful sexual harassment.

So, if you write for a show that has sexual themes, or if you work for a magazine that features naked women (or men), if you work on the set of a movie with sexual content, go ahead and talk about sex if, and only, if you are talking about it in the context of your job.

But if you work at a bank, or a law firm**, or an energy company, or a hospital, or a restaurant (and so on and so on), there probably is not a situation where you can talk about sex without risking creating an unlawfully hostile environment.

*This blog is for entertainment purposes only and should not be construed as legal advice or offering a legal conclusion.
**Employment lawyers and HR people get to talk about sex every day. So, if you have an overwhelming desire to talk about sex, those are the careers for you.

The Fish Stinks From the Head

The Fish Stinks From the Head

A number of years ago, I attended the holiday party of the firm where I worked at the time. The firm’s management committee met in Los Angeles that week, so all of the members of the executive committee attended the holiday party. Talk about awkward.

It was Friday night and I was tired from a long week of working on various harassment and discrimination lawsuits. I decided to leave the party early and said goodbye to the friends and colleagues around me. In that group was a member of the executive committee, who was from another office and whom I had never met before. He asked for a ride back to his hotel. I said, “Sure”, because his hotel was on my way back to the freeway, and because it did not occur to me that he would do anything inappropriate. Our office did not have that kind of culture.

Apparently, his office did. Or at least he did. As I drove toward the hotel, I asked where the entrance was. He pointed to the parking lot and said, “Well, you can park there if you want to come up to my room.” I laughed. Was I nervous? Was I trying to play it off as a joke? I’m not sure. I know that I managed to convey that wasn’t going to happen. I dropped him at the entrance and got home without incident.

The next day, I went to talk to my best friend in the office. He had made partner earlier that year. I told him what happened and, without hesitation, he said, “You have to tell [the managing partner].” I told him I did not want to. He said that if I did not, he would.

So, later that day, I knocked on the door of the managing partner. “Can I talk to you?” I asked. I was incredibly nervous. I really did not want to tell him. But my sister once told me that, in difficult situations like this, you should just start talking and momentum will take over. She’s right.

I told the managing partner about the creepy member of the executive committee. His reaction surprised me, in the best possible way. The first word he said? “Shit.” And then he said, “The fish stinks from the head.” I knew what he meant: if there are bad actors at the top, it ruins the rest of the organization. He had worked so hard to make sure there was no such stink in our office. And he was dismayed that such a stink had affected one of his lawyers.

I don’t know what the firm did, but I know that I never had to interact with that executive committee member again. I also know that my complaint had no adverse impact on my career. I have every faith that the managing partner of our office put the fear of god into him and anyone else who might disrupt the harmony of our office.

Keeping a workplace free from harassment requires good policies, procedures, and training. But those things cannot alone create a safe and productive workplace. The leadership must be dedicated to creating, cultivating, and protecting a harassment-free workplace, and to taking prompt action when even the slightest hint of harassment occurs.