'If I was an HR person, I would prohibit that music,' says lawyer, citing recent case looking at allegations of hostile work environment
Employers might want to keep a closer “ear” on the music being played in their common areas after a recent decision by the Ninth Circuit Court of Appeals concluded that offensive music played in work environments can constitute sexual discrimination.
Earlier this year, Stephanie Sharp and seven other former employees of S&S Activewear, LLC (Sharp) claimed the company created a hostile work environment by allowing “sexually graphic, violently misogynistic” music to be played pervasively throughout its 770,000-square-foot Reno warehouse, even after “almost daily” complaints.
S&S argued to dismiss the case, citing failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The case was dismissed from district court on the grounds that music cannot be sexually discriminatory when it is played in public areas where both women and men can hear it, and can be deemed offensive to both genders, thereby not targeting any specific group or individual.
The Ninth Circuit panel disagreed, bringing the question to a head, stating “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“
Mark Mausert, the Reno, Nevada lawyer who litigated on behalf of the plaintiffs, says that Title VII (of the Civil Rights Act) sexual harassment cases involving offensive music are more common than most employers realize.
“Especially when you have workplaces that require employees to keep at least one ear free for situational awareness, because they can't get away from it,” he said. “If you have a visual display, you can simply avoid looking at it. But if you're having to listen to that all day long, what it does is it implicitly negates any policy which has been handed out or otherwise disseminated to the employees.”
Sharp alleged that the derogatory music was played loud enough through warehouse speakers to drown out operational noise, and that some workers had speakers on their forklifts. It was also alleged that male workers would pantomime and sing along to the music in sexually offensive ways.
Two landmark 1998 Supreme Court rulings decided that an employer is liable when a supervisor creates a sexually hostile work environment, unless it can prove it took “reasonable care to prevent and promptly remedy the abusive situation, and… that the plaintiff employee unreasonably failed to pursue available disciplinary measures or otherwise avoid the harassment.”
Under these rules, most employers implement company policies against sexual harassment, to mitigate against such litigation. But music has remained a grey area, leaving employers vulnerable to litigation, Mausert says.
“Almost everybody I sue has a [sexual harassment] policy,” he said. “The smart ones never get sued, because they take the policy seriously, because you want to have a healthy working community, and sexual harassment breeds in the dark.”
Exacerbating what might already be a potentially problematic situation is the statistically high likelihood that a proportion of a female workforce will already have experienced sexual harassment in some form, says Mausert –81% of women in the US report experiencing sexual harassment or assault in their lifetimes, according to the National Sexual Violence Resource Center (NSVRC),.
In the Reno S&S warehouse, women comprised about half of the workforce, according to the panel’s report.
“Employers don't understand how prevalent the problem is,” said Mausert. “If you've got a bunch of women in the workplace, you've probably got 30, 40, or an even higher percentage of those women have been sexually abused one way or another, or raped. And somebody thinks it’s funny to play a song that glorifies rape, or subjugation of women. [The women are] going to work and they're being re-traumatized on a daily basis. And that's a great way to get yourself sued.”
S&S also claimed that since there was one man in the group of eight plaintiffs, Sharp’s claim was invalid. The district court agreed that the presence of female and male complainants negated a hostile workplace claim.
The Ninth Circuit court promptly challenged that decision, and the case is now heading back to court.
“S&S’s arguments… hinge on an ‘equal opportunity harasser’ defense that we simply do not countenance,” Ninth Circuit judge M. Margaret McKeown wrote. “An employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace. Crediting such an approach would leave a gaping hole in Title VII’s coverage. And, again, targeting a specific person is not a prerequisite for a viable claim under Title VII.”
The Equal Employment Opportunity Commission (EEOC) agreed, filing a brief in support that read, “exposing employees to misogynistic and sexually graphic music can be discrimination because of sex, even where the employer exposes both women and men to the material and even though both women and men find the material offensive.”
This decision could have a “chilling effect” on workplaces that allow employees to play music throughout public areas, The National Law Review wrote, as HR professionals will need to address issues of what genres, artists or songs are or aren’t allowed in common areas.
“The decision leaves unanswered some questions, such as whether employees could state a claim on the basis of music or media by an artist (or even a politician) who has expressed racist, sexist, or other offensive views, even where those views are not evident through the specific content an employer may have allowed,” wrote the Review.
For Mausert, who has seen many of these cases firsthand, across-the-board bans of any potentially sexually explicit music is the best advice.
“If I was an HR person, I would prohibit that music,” he said. “Because otherwise you're going to get incidents. You'll get an instance where people are singing along with music, even if they have headsets on. Just prohibit it outright.”
