| American Apparel: The National Law Journal |
 Is it creative style, or harassment? Employment lawyers watch for outcome in 'American Apparel' case. Amanda Bronstad LOS ANGELES - Dov Charney, the founder and chief executive of clothing
manufacturer American Apparel Inc., holds meetings in his underwear and regularly refers to women using words like sluts, whores and other socially unacceptable epithets. But that's just creative expression, said Charney's lawyer. Charney is facing a sexual harassment case filed by Mary Nelson, a former sales manager at Los Angeles-based American Apparel. Mary Nelson v. American Apparel Inc., No. BC333028 (Los Angeles Co., Super. Ct.). Last week, at the start of trial, both parties agreed to arbitrate the case rather than face a jury. About five months ago, Charney recruited as lead counsel Adam Levin, a partner at Los Angeles-based Mitchell Silberberg & Knupp, who represented a division of Warner Bros. and other producers in a California Supreme Court case involving a sexual harassment claim against the writers of the television show Friends. Employment lawyers in California are closely monitoring the outcome of the American Apparel case, which is the first to rely significantly on the Friends decision. Many have praised the Friends decision for protecting employers against a host of new litigation involving vulgar language in the workplace. Lawyers for employees have sought to distinguish the Friends case from most sexual harassment claims. In defending Charney, Levin frequently cites the decision, which stated that certain sexually offensive statements and behavior were permissible in a workplace in which writers exchanged ideas for an adult television show. Lyle v. Warner Bros. Television Productions, 132 P.3d 211 (Calif. 2006). Levin said Charney's workplace is no different. "Lyle is front and center in this litigation," Levin said. "Like in the Lyle case . . . this is not about sexual harassment. This is about the First Amendment rights of American Apparel and its founder." Nelson began working in sales for American Apparel in September 2003, according to court papers. Once, Charney asked Nelson to come to his home to discuss work. When she arrived, he showed up in his underwear. At another meeting, Charney wore a more revealing outfit. Charney distributed magazines with images of himself in the nude and articles describing his sexual exploits with American Apparel employees. He also frequently has sex with his employees and openly talks about masturbation, said Keith Fink of Los Angeles-based Keith A. Fink & Associates, who represents Nelson. "If ever there was a hostile work environment, this is the one," he said. After Nelson contacted an attorney, Charney fired her in January 2005. In court papers, Charney disputes Nelson's statements as "outlandish and exaggerated accusations." He said Nelson had trouble at her job and was being transitioned from her position. In court papers, Levin relies heavily on the Lyle decision, in which the court found that the plaintiff, Amaani Lyle, a former assistant to the writers of Friends, failed to prove that the sexual comments and gestures of some of the male writers were "severe and pervasive" enough to warrant harassment. "The court held that vulgarity can, in some circumstances, be a necessary part of a creative workplace environment," said Michael E. Brewer, managing shareholder of the Walnut Creek, Calif., office of San Francisco's Littler Mendelson. "And it noted that the language in this case didn't involve and wasn't aimed at the plaintiff, or at women in general." Levin said that Charney's comments, and the magazine images and articles, were not directed toward Nelson, nor at women, but are part of American Apparel's marketing and advertising campaigns, he said. Further, Nelson never complained about being sexually propositioned or touched. |
