42 Cal.Rptr.3d 2 (2006) 38 Cal.4th 264 132 P.3d 211

Amaani LYLE, Plaintiff and Appellant,
v.
WARNER BROTHERS TELEVISION PRODUCTIONS et al., Defendants and Respondents.

No. S125171.

Supreme Court of California.

April 20, 2006.

*4 Mark Weidmann, Los Angeles, and Scott O. Cummings, Long Beach, for Plaintiff and Appellant.

Law Offices of Jeffrey K. Winikow and Jeffrey K. Winikow, Los Angeles, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Russell K. Robinson, El Cajon, for Law Professors Cynthia G. Bowman, Devon Carbado, Kimberlé Crenshaw, Laura Gomez, Cheryl Harris, Kenneth L. Karst, Charles J. Ogletree, Deborah L. Rhode, Dorothy E. Roberts, Russell K. Robinson, *5 Leti Volpp, Adam Winkler, Kimberly A. Yuracko and Noah Zatz as Amici Curiae on behalf of Plaintiff and Appellant.

Patricia A. Shiu, Claudia Center, San Francisco, Shelley A. Gregory and Elizabeth Kristen for The Legal Aid Society-Employment Law Center, Asian Law Caucus, California Women's Law Center and Equal Rights Advocates as Amici Curiae on behalf of Plaintiff and Appellant.

Mitchell Silberberg & Knupp, William L. Cole, Adam Levin, Douglas W. Bordewieck and Samantha C. Grant, Los Angeles, for Defendants and Respondents.

Loeb & Loeb, Douglas E. Mirell, Carla Feldman and Joseph Geisman, Los Angeles, for Feminists for Free Expression and Women's Freedom Network as Amici Curiae on behalf of Defendants and Respondents.

Horvitz & Levy and Frederic D. Cohen, Encino, for Alliance of Motion Picture and Television Producers, Center for Individual Rights, the Foundation for Individual Rights in Education, Los Angeles Advertising Agencies Association, Motion Picture Association of America, Inc., the National Association of Scholars, Rubin Postaer and Associates and the Student Press Law Center Inc., as Amici Curiae on behalf of Defendants and Respondents.

Marshall M. Goldberg for the Writers Guild of America, West, Inc., The Directors Guild of America, the Screen Actors Guild, Sybil Adelman, Kate Angelo, John Auerbach, Ron Bass, John Beck, Steven Bochco, John Bowman, Yvette Lee Bowser, Sally Bradford, Pam Brady, John Brancato, Adam Brooks, James L. Brooks, J. Stewart Burns, James Burrows, Jason Cahill, Frank Kell Cahoon, Larry Charles, Joel Cohen, Jon Collier, Kevin Curran, Carlton Cuse, Larry David, Elias Davis, Nastaran Dibai, Marc Dube, Ted Elliot, Diane English, Mike Ferris, Greg Fitzsimmons, Terry Curtis Fox, John Furia, Jr., Shannon Gaughan, Will Gluck, Gary David Goldberg, Carl Gottlieb, Jeff Greenstein, Rick Groel, Ellen Guylas, Karen Hall, Charlie Hauck, Alex Herschlag, Jeffrey Hodes, David Isaacs, Gary Janetti, Al Jean, Chip Johannessen, Irma Kalish, Kourtney Kang, Nick Kazan, Barry Kemp, Laura Kightlinger, Robert King, John Kinnally, David Koepp, Pang-Ni Landrum, Dale Launer, Bill Lawrence, Norman Lear, Peter Lefcourt, Gail Lerner, Ken Levine, Tim Long, Don Mankiewicz, Myles Mapp, Jhoni Marchinko, Jeff Martin, Craig Mazin, Jeff Melvoin, Aaron Mendelsohn, Carol Mendelsohn, George Meyer, Joan Meyerson, David Milch, Miles Millar, Jay Moriarty, Theresa Mulligan, Bob Nickman, Peter Noah, Bill Odenkirk, Lawrence O'Donnell, Tim O'Donnell, Carolyn Omine, Daniel Palladino, J. Stanford Parker, Don Payne, Daniel Petrie, Jr., David Pollock, Elaine Pope, Tracy Poust, Michael Price, Max Pross, Matt Pyken, Tad Quill, Mike Reiss, Adam Rodman, Howard Rodman, Fred Rubin, Diane Ruggiero, Jeff Schaffer, James Schamus, Stephen Schiff, Tom Schulman, Lisa Seidman, Matt Selman, David Seltzer, Tom Shadyac, Ed Solomon, Jonathan Stark, Mark Stegemann, Doug Steinberg, Gardner Stern, Matt Stone, Kathy A. Stumpe, Rob Thomas, Scott Thompson, Mike Tollin, Patric Verrone, David Walpert, Matt Warburton, Sonja Warfield, Eric Weinberg, David Weiss, John Wells, Mike White, Matthew Wickline, Larry Wilmore, Marc Wilmore, Terence Winter, Bill Wrubel and Elisa Zuritsky as Amici Curiae on behalf of Defendants and Respondents.

Sonnenschein Nath & Rosenthal, Michael A. Bamberger, Martin J. Foley and Mark T. Hansen, Los Angeles, for American Booksellers Foundation for Free Expression, Association of American Publishers, Inc., Comic Book Legal Defense Fund, Freedom to Read Foundation and Publishers *6 Marketing Association as Amici Curiae on behalf of Defendants and Respondents.

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Los Angeles; Thomas W. Newton, Sacramento; Lucy A. Dalglish; Harold L. Fuson, Jr., Judith Fanshaw, La Jolla; Karlene W. Goller, Los Angeles; Peter Scheer, San Francisco; Levine Sullivan Koch & Schulz, James E. Grossberg; Cohn and Marks and Kevin M. Goldberg for California Newspapers Publishers Association, The Reporters Committee for Freedom of the Press, The Daily Journal Corporation, The Copley Press, Inc., Los Angeles Times Communications LLC, California First Amendment Coalition, Freedom Communications, Inc., and The American Society of Newspaper Editors as Amici Curiae on behalf of Defendants and Respondents.

Pillsbury Winthrop, Pillsbury Winthrop Shaw Pittman, George S. Howard, Alicia I. Mead, San Diego; Law Offices of Steven Drapkin and Steven Drapkin for The Employers Group and The California Employment Law Council as Amici Curiae on behalf of Defendants and Respondents.

Law Offices of Manuel S. Klausner and Manuel S. Klausner, Los Angeles, for Individual Rights Foundation, Reason Foundation and Libertarian Law Council as Amici Curiae on behalf of Defendants and Respondents.

James E. Holst, Oakland, Jeffery A. Blair and Christopher M. Patti, Oakland, for The Regents of the University of California as Amicus Curiae.

*3 BAXTER, J.

Plaintiff was a comedy writers' assistant who worked on the production of a popular television show called Friends. The show revolved around a group of young, sexually active adults, featured adult-oriented sexual humor, and typically relied on sexual and anatomical language, innuendo, wordplay, and physical gestures to convey its humor. Before plaintiff was hired, she had been forewarned that the show dealt with sexual matters and that, as an assistant to the comedy writers, she would be listening to their sexual jokes and discussions about sex and transcribing the jokes and dialogue most likely to be used for scripts. After four months of employment, plaintiff was fired because of problems with her typing and transcription. She then filed this action against three of the male comedy writers and others, asserting among other things that the writers' use of sexually coarse and vulgar language and conduct, including the recounting of their own sexual experiences, constituted harassment based on sex within the meaning of the Fair Employment and Housing Act (the FEHA) (Gov.Code, § 12900 et seq.; all further statutory references are to this code unless otherwise indicated).

The Court of Appeal reversed the trial court's order granting summary judgment on plaintiff's sexual harassment action. We granted review to address whether the use of sexually coarse and vulgar language in the workplace can constitute harassment based on sex within the meaning of the FEHA, and if so, whether the imposition of liability under the FEHA for such speech would infringe on defendants' federal and state constitutional rights of free speech.

Here, the record discloses 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. Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted *7 harassment directed at plaintiff because of her sex within the meaning of the FEHA. Furthermore, to the extent triable issues of fact exist as to whether certain offensive comments were made about women other than plaintiff because of their sex, we find no reasonable trier of fact could conclude these particular comments were severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA. Accordingly, we remand the matter with directions to affirm the summary judgment order insofar as it pertains to plaintiff's sexual harassment action, without addressing the potential of infringement on defendants' constitutional rights of free speech.

FACTUAL AND PROCEDURAL BACKGROUND

After receiving a right to sue letter from the Department of Fair Employment and Housing, plaintiff Amaani Lyle filed this action against organizations and individuals involved in the production and writing of the popular adult-oriented Friends television show, including Warner Bros. Television Production (WBTV), NBC Studios (NBC), Bright, Kauffman, Crane Productions (BKC), and producers-writers Adam Chase, Gregory Malins, and Andrew Reich. Her first amended complaint alleged causes of action under the FEHA for race and gender discrimination, racial and sexual harassment, and retaliation for opposing race discrimination against African-Americans in the casting of Friends episodes. The complaint also alleged common law causes of action for wrongful termination in violation of the public policies against race and gender discrimination and retaliation for complaining about race discrimination in violation of the FEHA.

After engaging in discovery, defendants moved for summary judgment and summary adjudication. The trial court granted the motion, ruling: (1) NBC and BKC were not plaintiff's employers and therefore were not liable on any FEHA cause of action; (2) plaintiff's FEHA harassment claims were time-barred; (3) plaintiff could not, in any event, factually establish her FEHA claims of race and gender discrimination, retaliation, or harassment as to any defendant; and (4) plaintiff could not establish her common law causes of action for wrongful termination in violation of public policy. The court entered judgment for all defendants and awarded them $21,131 in costs. In a postjudgment order, the court awarded defendants $415,800 in attorney fees on grounds that plaintiff's FEHA causes of action were "frivolous, unreasonable and without foundation."

The Court of Appeal affirmed the judgment in part and reversed it in part. Among other things, the court found defendants entitled to summary adjudication on plaintiff's FEHA and common law causes of action for termination based on race, gender, and retaliation, but concluded triable issues of fact existed as to her FEHA causes of action for sexual and racial harassment against defendants WBTV, BKC, Chase, Malins, and Reich. Accordingly, the court reversed the attorney fees award and vacated the award of costs for recalculation by the trial court to reflect the partial reversal of the judgment.

Both sides petitioned for review. We denied plaintiff's petition, but granted defendants' petition and ordered briefing and argument limited to the following issues: (1) Can the use of sexually coarse and vulgar language in the workplace constitute harassment based on sex within the meaning of the FEHA? and (2) Does the imposition of liability under the FEHA for sexual harassment based on such speech infringe on defendants' rights of free speech under the First Amendment to the *8 federal Constitution or the state Constitution?

DISCUSSION

A. Sexually Coarse and Vulgar Language

There is no dispute that sexually coarse and vulgar language was used regularly in the Friends writers' room. But the use of sexually coarse and vulgar language in the workplace is not actionable per se. Rather, we must look to the specific facts and circumstances presented to determine whether the language at issue constituted harassment based on sex within the meaning of FEHA and whether such language was severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff because of her sex.

1. The Facts Presented in the Summary Judgment Proceeding

Our first task is to determine whether the facts presented in the summary judgment proceeding were sufficient to establish a prima facie case of sexual harassment under the appropriate legal standards. We begin by reviewing the rules governing the summary judgment procedure.^[1]

"A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); see also id., § 437c, subd. (f) [summary adjudication of issues].) The moving party bears the burden of showing the court that the plaintiff `has not established, and cannot reasonably expect to establish, a prima facie case. . . .' [Citation.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460, 30 Cal. Rptr.3d 797, 115 P.3d 77 (Miller).) "[O]nce a moving defendant has `shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff `may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .' [Citations.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477, 110 Cal. Rptr.2d 370, 28 P.3d 116.)

"On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. [Citation.]" (Miller, supra, 36 Cal.4th at p. 460, 30 Cal.Rptr.3d 797, 115 P.3d 77.)

Defendants' summary judgment motion relied on declarations from defendants Chase, Malins, Reich, and others, and other facts developed during discovery. These declarations and the deposition testimony of the parties and others disclosed that Chase, Malins, and Reich worked for defendant WBTV and were writers on the sixth production season of Friends. In June 1999, Malins and Chase, who also served as executive producers on the production, interviewed plaintiff, an African-American woman, for the position of writers' assistant for the Friends production. During the interview, they told plaintiff the show dealt with sexual matters and, as *9 a result, the writers told sexual jokes and engaged in discussions about sex. Plaintiff responded that sexual discussions and jokes did not make her uncomfortable, and she subsequently was hired as a writers' assistant.

In her deposition, plaintiff testified she had no recollection of any employee on the Friends production ever saying anything sexually offensive about her directly to her. No one on the production ever asked her out on a date or sexually propositioned her. Likewise, no one ever demanded sexual favors of her or physically threatened her.

Plaintiff testified, however, that a number of offensive discussions and actions occurred in the writers' meetings she was required to attend. The writers regularly discussed their preferences in women and sex in general. Chase spoke of his preferences for blonde women, a certain bra cup size, "get[ting] right to sex" and not "mess[ing] around with too much foreplay." Malins had a love of young girls and cheerleaders. Some of the sex-based discussions occurred outside the writers' room, that is, in the breakroom and in the hallways.

Also during the writers' meetings, Malins constantly spoke of his oral sex experiences and told the group that when he and his wife fought, he would "get naked" and then they would never finish the argument. Malins had a "coloring book" depicting female cheerleaders with their legs spread open; he would draw breasts and vaginas on the cheerleaders during the writers' meetings. The book was left on his desk or sometimes on writers' assistants' desks. Malins frequently used a pencil to alter portions of the name "Friends" on scripts so it would read "penis." Malins also spoke of his fantasy about an episode of the show in which the Friends character "Joey" enters the bathroom while the character "Rachel" is showering and has his way with her. And, during each of the four months plaintiff worked on the Friends production, some writers made masturbatory gestures.

In addition, plaintiff heard the writers talk about what they would like to do sexually to different female cast members on Friends. Malins remarked to Chase that Chase could have "fucked" one of the actresses on the show a couple of years before, and the two constantly bantered about the topic and how Chase had missed his chance to do so. Chase, Malins, and Reich spoke demeaningly about another actress on the show, making jokes about whether she was competent in sexually servicing her boyfriend. They also referred to her infertility once and joked she had "dried twigs" or "dried branches in her vagina."

In their depositions, Chase, Malins, and Reich gave testimony that corroborated portions of plaintiff's allegations. Chase acknowledged he had discussed, while in the writers' room, his personal sexual experiences. Chase also confirmed that he and other writers discussed anal sex, and that he had gestured on occasion as if he were masturbating, but could not recall having done so when plaintiff was present. Malins and Reich admitted "blowjob stories" were told in the writers' room. Reich said he had pantomimed masturbation in the writers' room, sometimes as a way of indicating something was a waste of time. In the writers' room and sometimes elsewhere, Reich and other writers discussed oral sex and anal sex, and writers discussed their personal sexual conduct. Reich also acknowledged he and others altered inspirational sayings on a calendar, changing, for example, the word "persistence" to "pert tits" and "happiness" to "penis."

These writers and others also testified that, both before and after plaintiff was hired, sexually coarse and vulgar language *10 was used in the writers' room in group sessions with both male and female participants present, and both male and female writers discussed their own sexual experiences to generate material for the show. Episodes of the show often featured sexual and anatomical language, innuendo, wordplay, and physical gestures to convey humor concerning sex, including oral sex, anal sex, heterosexual sex, gay sex, "talking dirty" during sex, premature ejaculation, pornography, pedophiles, and so-called "threesomes."

In opposing defendants' summary judgment motion, plaintiff likewise relied on the parties' deposition testimony. She also submitted two of her own declarations, in which she reiterated and more particularly described the graphic nature of the writers' alleged comments and conduct.^[2] Her declarations also referred to incidents she did not mention in her deposition. Most significantly, she claimed for the first time that Chase, Malins, and Reich referred to women using gender-related epithets.^[3]

In this court, defendants argue the facts shown in the summary judgment proceeding do not establish actionable harassment under the FEHA because: (1) use of sexual speech, standing alone, does not violate the FEHA's prohibition against harassment because of sex; and (2) the conduct did not amount to severe or pervasive conduct that altered the terms or conditions of plaintiff's employment.

2. The FEHA and its Prohibitions

We now turn to a review of the FEHA and its prohibitions.

*11 With certain exceptions not implicated here, the FEHA makes it an unlawful employment practice for an employer, "because of the . . . sex . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment." (§ 12940, subd. (a).) Likewise, it is an unlawful employment practice for an employer, "because of . . . sex, . . . to harass an employee." (§ 12940, subd. (j)(1).) Under the statutory scheme, "`harassment' because of sex" includes sexual harassment and gender harassment. (§ 12940, subd. (j)(4)(C).) These prohibitions represent a fundamental public policy decision regarding "the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination." (Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272; see also Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414, 26 Cal.Rptr.2d 116.)

As we recently explained, "the prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex." (Miller, supra, 36 Cal.4th at p. 461, 30 Cal.Rptr.3d 797, 115 P.3d 77.) Here, plaintiff does not contend defendants subjected her to unwelcome sexual advances as a condition of employment; rather, she alleges defendants created a hostile or abusive work environment. For this type of claim, plaintiff need not show evidence of unwanted sexual advances. (Id. at pp. 461-462, 30 Cal. Rptr.3d 797, 115 P.3d 77.)

According to regulations interpreting and implementing the FEHA, the prohibition against discrimination in employment because of sex is intended to guarantee that members of both sexes will enjoy equal employment benefits. (Cal.Code Regs., tit. 2, § 7290.6, subd. (b).) For purposes of the FEHA, an "employment benefit" specifically includes "provision of a discrimination-free workplace" (id., § 7286.5, subd. (f)), which in turn is defined as "provision of a workplace free of harassment" (id., § 7286.5, subd. (f)(3).)

Like the FEHA, title VII of the federal Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.) prohibits sexual harassment, making it an unlawful employment practice for an employer, among other things, "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex[.]" (42 U.S.C. § 2000e-2(a)(1).) Because the workplace environment is one of the terms, conditions, or privileges of employment, a plaintiff may establish a violation of Title VII by showing that discrimination because of sex has created a hostile or abusive work environment. (See Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 64-66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (Meritor).) Thus, while the wording of Title VII and the FEHA differs in some particulars, both statutory schemes regard the prohibition against sexual harassment as part and parcel of the proscription against sexual discrimination, and "the antidiscriminatory objectives and overriding public policy purposes of the two acts are identical." (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517, 76 Cal. Rptr.2d 547.)^[4]

*12 In light of these similarities, California courts frequently seek guidance from Title VII decisions when interpreting the FEHA and its prohibitions against sexual harassment. (Miller, supra, 36 Cal.4th at p. 463, 30 Cal.Rptr.3d 797, 115 P.3d 77.) For instance, we agree "with the United States Supreme Court that, to prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. (See Aguilar v. Avis Rent A Car System, Inc. [(1999)] 21 Cal.4th [121,] 130, 87 Cal.Rptr.2d 132, 980 P.2d 846 [(Aguilar)], relying upon Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 [(Harris)].)" (Miller, supra, 36 Cal.4th at p. 462, 30 Cal.Rptr.3d 797, 115 P.3d 77, italics added.) As the high court explained, a workplace may give rise to liability when it "is permeated with `discriminatory [sex-based] intimidation, ridicule, and insult,' [citation], that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment[.]'" (Harris, supra, 510 U.S. at p. 21, 114 S.Ct. 367.)

Under Title VII, a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome (see Meritor, supra, 477 U.S. at p. 68, 106 S.Ct. 2399); (2) because of sex (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (Oncale)); and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment (id. at p. 81, 118 S.Ct. 998; Meritor, supra, 477 U.S. at p. 67, 106 S.Ct. 2399). In addition, she must establish the offending conduct was imputable to her employer. (Meritor, supra, 477 U.S. at pp. 69-73, 106 S.Ct. 2399.) California courts have adopted the same standard for hostile work environment sexual harassment claims under the FEHA. (See, e.g., Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608, 262 Cal. Rptr. 842 (Fisher).)

Defendants argue the evidence shown in the summary judgment proceeding, even when liberally construed in plaintiff's favor, was insufficient to establish either that the alleged offending conduct was undertaken because of plaintiff's sex, or that the conduct was sufficiently severe or pervasive to alter the conditions of her employment. We address these two elements, and the sufficiency of the related facts, below.

a. Harassment Because of Sex

In Oncale, supra, 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201, the United States Supreme Court explained that "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at `discriminat[ion] . . . because of . . . sex.'" (Oncale, supra, 523 *13 U.S. at p. 80, 118 S.Ct. 998.) Consequently, the high court stated, "workplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations." (Ibid.) Rather, "`[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" (Ibid., quoting Harris, supra, 510 U.S. at p. 25, 114 S.Ct. 367 (conc. opn. of Ginsburg, J.).) This means a plaintiff in a sexual harassment suit must show "the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted `discrimina[tion] . . . because of . . . sex.'" (Oncale, supra, 523 U.S. at p. 81, 118 S.Ct. 998.)

For FEHA claims, the discrimination requirement has been phrased similarly: "To plead a cause of action for [hostile work environment] sexual harassment, it is `only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff "had been a man she would not have been treated in the same manner."' [Citation.]" (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348, 21 Cal.Rptr.2d 292 (Accardi); see Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1001, 112 Cal.Rptr.2d 347 [quoting Accardi].) Accordingly, it is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim.

The Fair Employment and Housing Commission (FEHC) is the agency charged with administering the FEHA. Consistent with the FEHA's public policy objective to safeguard the right and opportunity of all persons to employment "without discrimination or abridgement on account of . . . sex" (§ 12920), the FEHC declares: "Employment practices should treat all individuals equally, evaluating each on the basis of individual skills, knowledge and abilities and not on the basis of characteristics generally attributed to [protected groups]." (Cal.Code Regs., tit. 2, § 7286.3.) According to the FEHC, "[t]he purpose of the law against discrimination in employment because of sex is to eliminate the means by which individuals of the female sex have historically been relegated to inferior jobs and to guarantee that in the future both sexes will enjoy equal employment benefits." (Cal.Code Regs., tit. 2, § 7290.6, subd. (b).)

In the context of sex discrimination, prohibited harassment includes "verbal, physical, and visual harassment, as well as unwanted sexual advances." (Cal.Code Regs., tit. 2, § 7291.1, subd. (f)(1).) In this regard, verbal harassment may include epithets, derogatory comments, or slurs on the basis of sex; physical harassment may include assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on the basis of sex; and visual harassment may include derogatory posters, cartoons, or drawings on the basis of sex. (Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1)(A), (B) & (C); see Miller, supra, 36 Cal.4th at p. 461, 30 Cal.Rptr.3d 797, 115 P.3d 77.) Decisions interpreting Title VII are in accord.^[5]

*14 Both FEHA and Title VII cases recognize that evidence of hostile, sexist statements is relevant to show discrimination on the basis of sex. (See Accardi, supra, 17 Cal.App.4th at pp. 348-349, 21 Cal. Rptr.2d 292; accord, Oncale, supra, 523 U.S. at p. 80, 118 S.Ct. 998 [actionable hostile work environment may include harassment in such sex-specific and derogatory terms as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace]^[6]; cf. Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479 ["conduct tending to demonstrate hostility towards a certain group" is relevant to show discrimination against an employee who is a member of that group].) However, while the use of vulgar or sexually disparaging language may be relevant to show such discrimination, it is not necessarily sufficient, by itself, to establish actionable conduct.

The FEHC concluded in a precedential decision that a FEHA hostile work environment sexual harassment claim may be established where, among other things, a male employee constantly referred to a female employee using demeaning, gender-specific terms. (Dept. Fair Empl. & Hous. v. Nulton (Sept. 16, 2003) FEHC Dec. No. 03-10 [2003 WL 22733897, *4, *7] [recognizing the male employee's repeated use of "fucking bitch" and one-time use of "cunt" were severe, within the meaning of the FEHA, "given these sex-based terms' inherently degrading and demeaning nature"].) A number of Title VII decisions have reached similar conclusions. (E.g., Steiner v. Showboat Operating Co. (9th Cir.1994) 25 F.3d 1459, 1463-1464 ["dumb fucking broads" and "fucking cunts"]; Burns v. McGregor Electronic Industries, Inc. (8th Cir.1993) 989 F.2d 959, 964-965 [such vulgar and offensive epithets are "`widely recognized as not only improper, but as intensely degrading'"]; Andrews v. City of Philadelphia, supra, 895 F.2d at p. 1485 ["pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidenc