quote:See, I'm going to make the argument that there's a distinction between talking about sex in excess of what can get on TV and talking specifically about, say, ejaculating all over a coworker's large breasts while expecting my secretary to write that down.
At best, we can merely speculate about how necessary that kind of talk is -- and, again, on what basis can we make that determination? Why would a TV writer be more entitled to make that argument than a construction worker? In neither case do we really know what they need to do their job.
Because the coworker happens to be the actress playing the part for which you are writing, there's a little more connection than a pat on the butt to laying down mortar.
The construction worker parallel is nonesensical, Tom. It fails the laugh test.
posted
Explain to me why, exactly, it's nonsensical. What part of the analogy invalidates it, precisely?
That it's a deliberately amusing example is self-evident; that's why I picked it. However, I fail to see the clear, logical reason that it's non-sensical. What specific element of the analogy breaks down when we're deciding whether a construction worker is more or less qualified than a TV writer to tell us he needs to engage in excessive vulgarity to do his job?
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As a side note, I would buy the whole "actress for whom the part was being written" bit if, even once, I could recall a joke about pearl necklaces being made on "Friends."
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quote:Explain to me why, exactly, it's nonsensical. What part of the analogy invalidates it, precisely?
I've done so, several times. In the seemingly vain hope you might at least address it, I'll do so again:
Talking about sex is necessary to write a show about sex. Touching someone on the butt when there's no physical boosting or lifting motive is not necessary to lay brick.
Therefore, the construction example can be dismissed immediately without attempting to draw any lines. That's why it's different.
quote:That it's a deliberately amusing example is self-evident; that's why I picked it. However, I fail to see the clear, logical reason that it's non-sensical. What specific element of the analogy breaks down when we're deciding whether a construction worker is more or less qualified than a TV writer to tell us he needs to engage in excessive vulgarity to do his job?
Because one has no necessity for the particular behavior being called harrassing, and one has admittedly some necessity for the behavior being called harrassing.
quote:As a side note, I would buy the whole "actress for whom the part was being written" bit if, even once, I could recall a joke about pearl necklaces being made on "Friends."
Again, there is necessity to go beyond what can be broadcast in brainstorming sessions.
posted
"Talking about sex is necessary to write a show about sex."
Again, I would disagree that Friends is "about sex" in the manner described; moreover, I would disagree that the writers ever believed that their jokes about anal sex and masturbation would ever make it into the show. At best, we can claim that these "beyond-the-pale" attempts at vulgar humor led them down paths that eventually produced the jokes they intended to air.
But once you do that -- once you say that "okay, this behavior did not directly produce this intended result, but put us in a frame of mind necessary to produce the intended result" -- it leads us back to the construction worker analogy. After all, why can't the construction worker argue that he needs to pat someone's butt to get into the mood to lay brick?
That is, again, the argument these writers are making: that while none of these jokes were aired, or intended to air, they were necessary in order to get into the mood to write.
"Again, there is necessity to go beyond what can be broadcast in brainstorming sessions."
Absolutely. But I would argue that, even in their brainstorming sessions, they never in a million years intended for jokes of that nature to leave the room. At best, the jokes created an environment that they felt best supported their creative process -- but, again, if the argument is that the production of an environment that may or may not have been offensive to women was necessary, we essentially invalidate all sexual harassment legislation.
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quote:After all, why can't the construction worker argue that he needs to pat someone's butt to get into the mood to lay brick?
He can argue it. And the minute he does, I'd be dancing up and down as opposing counsel (in private of course). Because as soon as he makes that argument, I know I've won, because it's a ridiculous argument.
posted
And yet it is more ridiculous than "we need to fantasize about ejaculating over Courtney Cox's breasts while she barks like a dog in order to write a joke in which she overcookes pasta because she's been distracted by a monkey?"
quote:Absolutely. But I would argue that, even in their brainstorming sessions, they never in a million years intended for jokes of that nature to leave the room. At best, the jokes created an environment that they felt best supported their creative process -- but, again, if the argument is that the production of an environment that may or may not have been offensive to women was necessary, we essentially invalidate all sexual harassment legislation.
No, that's hardly "at best." At best, the jokes in their crude form were modified to be acceptable to network standards.
posted
"At best, the jokes in their crude form were modified to be acceptable to network standards."
See, I'm not hearing that. I've seen a few episodes of "Friends," and a number of my coworkers here were obsessed enough with the show that I've got a decent amount of familiarity with it.
Unless they toned down the anal sex joke into a joke about wearing a duck on one's head, I don't see much evidence of that particular creative evolution.
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quote:And yet it is less ridiculous than "we need to fantasize about ejaculating over Courtney Cox's breasts while she barks like a dog in order to write a joke in which she overcookes pasta because she's been distracted by a monkey?"
Easily, because I wouldn't present it in those words. No matter how the construction situation is presented, it doesn't pass the "don't sell what you wouldn't buy" maxim.
posted
Ah. So while I'm arguing both fairness, logical consistency, and the need for coherent precedent, you're arguing "what I can make sound good." You're not saying that there's any logical reason that the construction worker analogy is flawed; it just sounds sillier, because we find the process of writing more mysterious than the process of bricklaying.
quote:"At best, the jokes in their crude form were modified to be acceptable to network standards."
See, I'm not hearing that. I've seen a few episodes of "Friends," and a number of my coworkers here were obsessed enough with the show that I've got a decent amount of familiarity with it.
Unless they toned down the anal sex joke into a joke about wearing a duck on one's head, I don't see much evidence of that particular creative evolution.
There were masturbation jokes, oral sex jokes, and at least one veiled reference to anal sex. There were jokes about naming body parts, fantasy, and sexual roleplay. There was a detailed desrciption of the best way for Monica to achieve orgasm, with Rachel cheering her on with mentions of being "upside down." Of course, the details were replaced with numbers, but, had they not been, it would have easily entered the territory of what you describe as self-evidently unnecessary. And it is very likely that scene started with a graphic description that was then toned down.
posted
Here is a link to the actual case (it's in pdf).
Some highlights:
quote: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.(footnote removed)
quote: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.(footnote removed)
quote: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.” 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] (several footnotes removed)
quote: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.
The evidence in the record shows Chase, Malins and Reich constantly engaged in discussions about anal and oral sex using the words “****,” “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. (footnote removed)
quote:A jury could find the sexual conduct in this case particularly severe because Lyle was a captive audience. 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.
On the defence "creative necessity":
quote: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. (footnote removed)
quote: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.
quote: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.
This is the appelate court sending the case back to the district court for a jury trial. I have not found out when this new trial is taking place (or whether it already has been conducted). I only scanned the judgement quickly, but it appears as if the justices considered the plaintiff to have a prima facie case for sexual harassment even as they see some merit in the "creative necessity" defence, and wanted to leave it for a jury to decide upon the specific circumstances of the case.
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quote:Ah. So while I'm arguing both fairness, logical consistency, and the need for coherent precedent, you're arguing "what I can make sound good." [Smile] You're not saying that there's any logical reason that the construction worker analogy is flawed; it just sounds sillier, because we find the process of writing more mysterious than the process of bricklaying.
Nope. Not what I'm saying at all. I've presented the reasons they're different time and time and time again now.
And time again.
Your articulation of the Friend's issue ignored several relevant points and ignored the fact that by the time that comes up, it will have already been decided that explicit sexual discussion is allowed. The threshold argument is far different in the construction situation.
"And it is very likely that scene started with a graphic description that was then toned down."
You know, in that specific case, I disagree -- precisely because the humor in that situation comes from the complex code, and not the acts being coded themselves. In other words, the acts themselves are not inherently humorous; they wouldn't've made any sense as jokes.
My own gut feeling is that that particular joke sprung nearly fully formed from someone's head, simply because it wouldn't've been a joke until the concept of coding it came up.
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posted
Again, though, unless we intend to argue that we should trust an individual worker's claim that a specific behavior was necessary -- an argument which makes the construction worker's claim no less valid than the writer's claim -- it becomes necessary for them to SHOW the origin of that joke. That YOU believe they came up with that joke by fantasizing about all the possible ways to bring Courtney Cox to orgasm is certainly no more compelling than my belief that they didn't.
quote:that we should trust an individual worker's claim
It's not just about trusting the individual worker's claim, there's also a credibility judgment. And the construction worker's claim is far, far less credible.
quote:That YOU believe they came up with that joke by fantasizing about all the possible ways to bring Courtney Cox to orgasm is certainly no more compelling than my belief that they didn't
But the fact that I, the consumate reasonable person , believe it makes the credibility assessment far more likely to go in the writer's favor.
posted
Based on whose assessment? Have we asked other construction workers, or been construction workers ourselves?
We make a judgement here for "credibility" based solely upon the fact that we don't completely understand the writing process, but are willing to believe that we do completely understand how to lay brick.
quote:Based on whose assessment? Have we asked other construction workers, or been construction workers ourselves?
We make a judgement here for "credibility" based solely upon the fact that we don't completely understand the writing process.
Tom, that credibility assessment is going to be made by a jury. The excerpted ruling basically states that the necessity defense is one which a reasonable juror could find for.
The credibility in either situation will be judged by people without firsthand knowledge of the industry. You can be sure one side or the other will take care of that in jury selection.
posted
Which is why I'm a little fascinated by the prospect of the trial. Are they going to have to trot out experts -- TV writers -- on either side to "prove" that it is or is not necessary to fantasize aloud about sodomy with the female leads to produce a sitcom?
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posted
I think that forcing the writers to restrict their conversations/behavior would contribute to a chilling effect on their work. In this instance, whatever the writers need to get into the writing headspace is fair game.
As suggested, this does not include anything directed at the transcriber herself. But thoughts, jokes, pathetic speculation, whatever works.
I think she should have spoken to them about it while she was there (if she didn't), asked to be swapped with another transcriber (if that was an option) or worked on finding a different position. Putting up with it until she was fired for something else and then suing sounds more like a vengeance suit.
I don't think that such behavior is necessary for writing comedy per se, but apparently it was for these writers. Shouldn't they be the ones determining the requirements of their job, as long as they produce? If one of the things they need is a transcriber that can't be offended, I don't see that as unreasonable.
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posted
"Shouldn't they be the ones determining the requirements of their job, as long as they produce?"
While I'm not unsympathetic to this argument, Chris, why would you extend this offer to writers but not permit it among construction workers? Why are they less entitled to decide what kind of work environment they need to lay brick?
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posted
Well, if I read the case correctly, it appears to be up to the plaintiff to establish that the comments, gestures, etc. were sufficiently severe to create a "hostile work environment" whereas, if she manage to do that, the defendants will have to convince the jury that their conduct were justified by "creative necessity".
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posted
Tristan, it doesn't make it clear to me if the defense only bears the burden of production or persuasion.
quote:While I'm not unsympathetic to this argument, Chris, why would you extend this offer to writers but not permit it among construction workers? Why are they less entitled to decide what kind of work environment they need to lay brick?
Because of the necessity of some talk about sex. Just like we would probably let a bricklayer get away with a method of applying mortar that might seem provocative.
posted
Because the bricklayer's job doesn't require creativity? Because they don't have to be in a particular mindset/mood/whatever to write Emmy-winning shows?
My main problem is, what laws would you write to restrict their behavior that wouldn't restrict creativity? It seems to me that the sole definer of what is offensive or not in that position is the transcriber. To me, that means "hire someone who won't get offended."
I'd really like to know what steps she took while she was still in the position.
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posted
She was fired for not writing down everything that they said. Would it change any of your opinions if it came out in the trial that the reason for this was not really that she was “too slow” but that she refused to transcribe certain comments? And that that is why she was fired?
Pure speculation on my part, but it doesn’t seem like much of a stretch from what we do know.
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posted
Hmm, "production or persuasion" appears to be an American distinction with which I'm not familiar. The Court said
quote:"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."
which I interpreted as "persuade", but you are far more qualified than I to judge the legal ramifications of the wording.
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posted
"what laws would you write to restrict their behavior that wouldn't restrict creativity?"
And this, then, is the issue. Should people who work in creative fields be exempt from all behavior-limiting legislation of any kind? Who, then, gets to decide what a creative field is?
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quote:She was fired for not writing down everything that they said. Would it change any of your opinions if it came out in the trial that the reason for this was not really that she was “too slow” but that she refused to transcribe certain comments? And that that is why she was fired?
Dkw, I was wondering about this too, which was one reason why I hunted down the case. However, the plaintiff makes no such claims at all. She admits to not typing fast enough and missing certain things, but claims this was only the pretext for which she was fired, the real reason being her complaining about discriminatory hiring practices of the Friend's cast. I don't think it would hurt her case to admit to deliberately have refused to transcribe certain comments, which leads me to believe that such was not the case.
posted
Should people who work in creative fields be exempt from all behavior-limiting legislation of any kind?
Nope. As has already been said, there are whole ranges of things they could not do. There were no restrictions on what they could say, or what they could do that wasn't directed at the transcriber.
Behavior limitation in such cases comes from the management. Does such behavior hinder the work? Does it create hostile environments and prevent competent people from seeking employment?
What would concern me would not be if her immediate work environment was harassing. What would concern me would be if the entire structure reinforced it. Could she go to the show's producers and complain? Would the producers have asked the writers to tone it down if she had? Could she be moved to the offices of different writers? If she had options and did not pursue them, I don't think the harassment charge is justified.
If she did not have such options, or if she tried them and was turned down or ignored, then she should sue 'em. If she did have such options but did not pursue them, then tough.
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quote:"Stupid crap like this is taken seriously..."
Just to clarify, you're saying that filing a sexual harassment suit because someone else was kissed by her boyfriend is stupid, right? Because the court would agree with you.
I would disagree, however, that filing a sexual harassment suit because you were forced to transcribe deliberately rude, vulgar, and exaggerated sexual fantasies about coworkers is equally stupid.
Sorry, Tom...I wasn't sufficiently clear. Yes, the "stupid crap" I was referring to was what happened where I worked, not what was in the article. That's what I get for writing in a hurry. Posts: 2454 | Registered: Jan 2003
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posted
I find it very disturbing that no one here questions the necessity of men treating women like sex objects to write jokes about sex. "Hey wouldn't it be funny if this happened," is very different from objectifying the female cast members.
I've mentioned in another thread to putting up with comments that were blatantly in violation of the bank's communication policies. The way this market works, I'd get fired for complaining since no one would back me up. Everyone runs around saying it's not that bad.
Since it looks like I'll be getting the other job, I've started thinking about how to point out the problems without seeming negative or whiney during the exit interview.
As a woman, I can tell you it's not easy to speak up and say something bothers you when everyone else is busy laughing and acting like it's no big deal. No one wants to be the only person in the office who can't take a joke. What's really bad is the bank addresses those exact issues in our Civil Treatment class, and the management here does it anyway.
Tristan's quotes say she was only there four months. I'm only changing jobs now after two years of this crap. It takes a while before the abuse outweighs the need for a paycheck.
I think it was very clear that the writers had no respect for women as human beings. If that's not sexual harrassment and creating a hostile work environment, I don't know what is.
As for her deserving money, it's not that she deserves it. It's that the writers need to be taught that what they did was wrong. Hit em where it hurts. I think of the money as a fine that goes to the victim instead of the government.
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quote:I find it very disturbing that no one here questions the necessity of men treating women like sex objects to write jokes about sex. "Hey wouldn't it be funny if this happened," is very different from objectifying the female cast members.
posted
Sorry, Tom. I thought you were debating the legalities of it. I'm glad I wasn't the only one bugged by it.
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posted
Dunno about Tom, but I was debating the legalities. What I think of the actions of the writers is another matter. I just don't think there's a valid harassment case.
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posted
The writers' degradation and objectification of women is juvenile and wrong. They are not people I would associate myself with. However, I don't think we should use the legal system as a way to "hit them where it hurts" and "teach them what they did was wrong" as AvidReader suggests we should do. Being an ass doesn't automatically mean your behavior qualifies as sexual harassment.
Also, to respond to something Tom said a while back:
quote: we are justified in asking whether simulating masturbation and making sex jokes about one's coworkers are indeed essential elements in producing a mediocre sitcom
Whether or not the sitcom is, in your assessment, "mediocre" bears no relation to the fact that it WAS successful. The writers' job describtion was NOT "write a show which TomDavidson things is good," but "write a show which makes money." By that description, they were good at their jobs.
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posted
I'm curious then, Brian. What should the woman have done instead? If the legal system won't stand up for the employee's right to not have to endure sexual objectification of women, who will? The company that makes money off the writers? What if the company won't enforce their own rules? Where else can she go?
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posted
People cut writers too much slack. These guys need to elaborate on their sexual fantasies involving cast members in order to write mildly sexual jokes? Yeah, sure. Perhaps they would write even better mildly sexual jokes if their brainstorming sessions involved flavoured lubricant and orgies.
Essentially, I don't get the 'they needed to do X in order to write successful jokes'. So? Does the law owe them success? If I need to eat the still-beating hearts of virgins to write a successful horror movie script, should I be allowed to?
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posted
"Dunno about Tom, but I was debating the legalities. What I think of the actions of the writers is another matter."
I don't think you can make this distinction. If your legal defense of their actions is that their vulgar behavior was indeed necessary for them to perform their job, you are tacitly approving of their actions or, alternatively, tacitly disapproving of their jobs. As you haven't spent any time condemning all sitcom writers, I can only assume the former: that you are willing to condone abusive, vulgar behavior if in the opinion of the writers it is necessary to produce a successful television show.
posted
I don't need to condone or approve of any of it. It's not my show. I don't set the rules for behavior for writers working on a TV show, and, more to the point, neither should the government.
Did the writers produce quality work? Were their bosses happy with the work?
If they did not, or if the transcriber had ever once complained about their actions, then the people in charge should have investigated to see if the writers needed to change their ways or be replaced. If the producers of the show feel that this kind of freedom is necessary to get scripts, it's their perogative. The atmosphere should have been mentioned in the job description, though, I'd have given the transcriber a heads-up and the option to move to another position.
Again and again and again - did she approach anyone with her concerns before she was fired? Did she have that option? Did she seek it out?
I'm not going to defend the actions of the writers. I am going to defend the producers' right to allow them.
[ December 23, 2004, 11:07 AM: Message edited by: Chris Bridges ]
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posted
As I understand the case, the company didn't have any rules to enforce. The woman didn't let anyone in her company know about the despicable behavior of her co-workers until AFTER her employment was terminated. If there IS no complaint, what can the company do to find a solution to the complaint?
While I agree that the writers are misogynistic, chauvinist pics, it appears that being morons is their only crime. It makes me VERY uncomfortable that the legal system is being used to punish them for being morons.
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posted
"I don't set the rules for behavior for writers working on a TV show, and, more to the point, neither should the government."
But the government does set rules for behavior in a workplace, specifically regarding things like sexual harassment, racial intimidation, etc. Do you believe that it should not?
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posted
Does it? It sets rules for hiring practices, and it requires that employees have avenues to redress such concerns. That's not at all the same thing. Does the government actually say you cannot make crude jokes in your workplace if none of the employees care?
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posted
"Does the government actually say you cannot make crude jokes in your workplace if none of the employees care?"
Actually, yeah, it does. Or, rather, it says you cannot make crude jokes in your workplace even if an employee present at the time of the joke does not make his or her displeasure known to you personally.
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Printer-friendly view of this topic
![[Smile]](smile.gif)
You're not saying that there's any logical reason that the construction worker analogy is flawed; it just sounds sillier, because we find the process of writing more mysterious than the process of bricklaying.![[Wink]](wink.gif)
, believe it makes the credibility assessment far more likely to go in the writer's favor.![[Evil]](graemlins/evil.gif)
FG
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