Case In Point
Comedy and Satire: Human Rights Considerations in the Writing Room
Date: September 18, 2024
While all companies have an obligation to prevent against workplace harassment and discrimination, those in the entertainment industry face a particular challenge. In some cases, the nature of the conversations and circumstances that workers may be engaged in could, in other work environments, be considered offensive or objectionable. As the cases discussed below illustrate, the unique context of the entertainment industry may be a relevant consideration in determining if workplace conduct in this type of environment does, in fact, violate human rights or occupational health and safety legislation.
In Canada, provincial human rights legislation prohibits conduct that discriminates against people based on a protected ground in a protected social area. Both human rights and health and safety legislation include prohibitions against harassment and sexual harassment in the workplace. Companies operating in the entertainment industry should consider what constitutes harassment and discrimination in the workplace, particularly in the context of writing rooms that are engaged in creating satire.
In the 2006 California decision of Lyle v Warner Bros Television Productions, 38 Cal. 4th 264 (2006), a former comedy writers’ assistant sued producers and writers of a television show under California’s Fair Employment and Housing Act (FEHA). Amongst other things, the former writers’ assistant alleged harassment, noting the male comedy writers and others engaged in sexually coarse and vulgar language and conduct.
The Supreme Court of California held that the plaintiff failed to establish a sexually objectionable work environment sufficiently severe or pervasive to support the claim. In reaching this conclusion, the court emphasized that the workplace was one “where comedy writers were paid to create scripts highlighting adult-themed sexual humor and jokes, and where members of both sexes contributed and were exposed to the creative process spawning such humor and jokes.” In this context, the sexual antics and sexual talk were found not to constitute harassment and/or were not severe enough to create a work environment that was hostile or abusive to the plaintiff per the meaning of the FEHA.
As this decision demonstrates, the context in which the alleged conduct arises may be relevant to whether or not it constitutes discrimination or harassment. The Supreme Court of Canada considered a similar issue in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse). In this case, the minor complainant was a singer in Québec with a rare genetic disorder. He brought a human rights complaint against a stand-up comic who mocked him in a comedy routine, referring to him as “the ugly singing kid” and describing his hearing aid device as a “subwoofer.”
Ultimately, the Supreme Court of Canada held the comic’s actions did not constitute discrimination under Québec’s Charter of Human Rights and Freedoms as the minor complainant had been targeted by the comic because he was a public figure, and not because of his disability.
In reaching its conclusion, the Supreme Court of Canada also considered the context in which the comments were made, stating, “The impugned comments … were made by a career comedian known for this type of humour. They exploited, rightly or wrongly, a feeling of discomfort in order to entertain, but they did little more than that.”
Key Takeaways
Companies in the entertainment industry bringing business from the U.S. to Canada should seek legal advice regarding the applicable legislation in the province in which they work. While the FEHA does not apply in Canada, human rights legislation in the various provincial jurisdictions does require companies to work to prevent workplace harassment and discrimination. These issues can be increasingly more complex and challenging to manage in workplaces engaged in producing satire.
Human rights-related complaints often result in litigation before a human rights tribunal, the courts and labour arbitrators. It is therefore critical for companies engaged in this industry to work with legal counsel to understand these ever-evolving legal issues and how to take preventative action to minimize the likelihood—and cost—of potential litigation.
If you have any questions about these issues or what they may mean for your organization, please feel free to contact your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
