A federal appeals court decision recently found an employer can be found liable for condoning sexual harassment by allowing the playing sexually explicit rap music in the workplace, even when it offends both men and women.
The employees who brought the suit – seven women and one man – said that the employer, S&S Activewear, had created a sexually hostile work environment by allowing supervisors to routinely play “sexually graphic, violently misogynistic music” at the company’s 700,000 square foot warehouse in Reno, NV. The songs contained lyrics glorifying prostitution, using expletives crudely describing sexual acts, and advocating violence against women.
They claimed that these songs were continuously blasted from commercial-strength speakers throughout the warehouse. Some employees complained “almost daily” for nearly two years before they brought suit. Despite these repeated complaints about the music, management defended it as a “motivational tool,” according to attorney Frank Shuster of the law firm of Constangy Brooks Smith & Prophete.
In addition, employees who brought the suit charged that some of the male employees shared sexually pornographic videos, and made sexual hand gestures, body movements and made sexual comments. The suit was filed in federal court in Nevada, and also alleged hostile environment discrimination, retaliation and constructive discharge.
Although the judge allowed most of the case to go forward, she dismissed the claim that the music created a sexually hostile work environment. The judge held that the plaintiffs could not prove discrimination based on sex because the music was played warehouse-wide, all employees were subjected to it, both men and women found it offensive, and there were no allegations that it was targeted at any particular group of employees.
Hearing an appeal to this ruling, the judges of the U.S. Ninth Circuit Court of Appeals reversed the dismissal and allowed the case to go forward in the lower court. In their view, the issue that should be addressed really was whether “music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex.”
In finding that it did, the court first recognized that harassing conduct need not be targeted at a person or group to be discriminatory, Shuster points out. The court recognized that, although Title VII of the federal civil rights law is not a “civility code” outlawing the use of any sexual language, context matters – especially in this case.
As for the context alleged by complaining employees, the appeals court concluded that “repeated and prolonged exposure to sexually foul and abusive music falls within a broader category of actionable auditory harassment that can pollute a workplace and violate Title VII” of the federal civil rights law.
Offending Everyone Equally
The appeals court judges also did not cotton to the district court’s dismissal of the music-based claims because that judge had taken note of the fact that there were men equally offended by the lyrics. And Shuster emphasizes that the Ninth Circuit characterized this argument as being based on an “equal opportunity harasser defense.”
Shuster notes that the Appeals Court judges made the explicit point that to permit “an employer to escape liability because it equally harassed whites and blacks, or men and women, would give new meaning to equal opportunity. Rather than embrace such an absurd interpretation, we resolve that the music’s alleged offensiveness to both male and female employees is no obstacle to [the] suit.”
Attorneys Caroline Burnett, Zachary Reeves and Autumn Sharp of the Baker McKenzie law firm further explain the appeals court judges also determined that harassment, whether aural or visual, does not need to be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim, explain
In the end, the federal judges also held that “music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex.”
Or, as Shuster put it quite succinctly, “The lessons to be learned are that the content of such media can be offensive to some, it does not matter whether the content is targeted at anyone, and the fact that it may offend men and women alike is not a defense.”
Burnett, Reeves and Sharp stress that employers from now on, in order to remain compliant with federal civil rights law, must be careful to ensure that any music being played at worksites is appropriate and inoffensive, or they will risk legitimate claims of sexual harassment.
“Furthermore, while this ruling only addresses harassment based on sex, it is reasonable to believe that its logic could extend to other protected classes (e.g., race, color, religion, national origin, disability, or age),” they add.
In addition, this case also underscores the importance of employers maintaining appropriate mechanisms to receive and investigate employee complaints of harassment that violates state and federal civil rights protections, the Baker McKenzie attorneys warn.
“Two years of near daily complaints should not fall on deaf ears. Instead, it is a strong signal to reassess what’s happening in the workplace. And, that something or someone is an equal opportunity offender does not excuse it – “it was offensive to everyone” is not be a sufficient defense.”
They suggest that a good litmus test for employers to apply is: “If the music in the workplace is leading some employees to make sexually graphic and violent gestures, it’s time to the change that tune.”