Litigation testing whether obscene and misogynistic rap music in the workplace gives rise to a hostile work environment claim serves as a warning to employers to take proactive measures, regardless of the cases’ outcome.
Two separate, nearly identical sexual harassment lawsuits claim managers and other employees regularly played vulgar music in the workplace and disregarded worker complaints—one involving a female Tesla Inc. employee and another involving a group of warehouse workers. Both cases, brought under Title VII of the 1964 Civil Rights Act, originated in Nevada.
As the cases make their way through the federal courts, they offer some early key lessons to employers to avoid scenarios where employees can view actions as disproportionately hurting members of protected groups, attorneys say.
At the same time, employers should take care to ensure that their policies and enforcement of them don’t benefit one protected group at the expense of another.
“Employers can avoid sexual or race-based harassment claims premised on offensive music in the workplace by having policies that forbid sexually or racially offensive content in the workplace—and actually enforcing them, especially if an employee makes a complaint about such music,” said Mark Oberti of Oberti Sullivan LLP.
“Most employers already have such policies. So, it is really more of a matter of diligent enforcement of those policies, which starts with having educated managers and an effective HR function,” Oberti added.
Tread Carefully
Most employers already have polices prohibiting sex-based jokes and other similar behaviors at work, employment attorneys said.
One option would be for employers to categorically ban all music in the workplace, except for the unlikely event a worker raises a religious accommodation issue. But companies should steer clear of banning only a certain musical genre linked to a protected group, attorneys said.
Take, for instance, rap music, which is deeply rooted in Black American culture, said FisherBroyles LLP partner Amy Epstein Gluck.
“You could be looking at a race discrimination claim” if an employer’s response is just to ban rap, Epstein Gluck said. “You don’t want to get out of the frying pan and into the fire.”
“I would think that music, not a type of music, be subject to an employer’s policy. No employer really wants to regulate music but I think this fits right into” a nondiscrimination policy, Epstein Gluck added.
The US Equal Employment Opportunity Commission has weighed in on the warehouse worker case involving S&S Activewear LLC. The US Court of Appeals for the Ninth Circuit heard oral argument Feb. 9 in the workers’ appeal from a federal district court ruling in favor of their company.
In its amicus brief in support of the workers, the EEOC “was careful in saying” that a particular genus of music shouldn’t be banned as a Title VII compliance measure, Epstein Gluck said.
Target Required?
But the EEOC told the Ninth Circuit that a Nevada district judge’s dismissal order erred in holding that the music at issue couldn’t factor into a sex-based hostile work environment claim from a man or woman because both were offended by it.
Several employment attorneys agree that targeting a particular employee or group isn’t required to prove a Title VII violation. The offensive language in the music at issue in the case was gendered, and therefore could support the female plaintiffs’ sex-based harassment claim, they said.
“The EEOC has a point that you have to look at what the content of a music is geared towards,” said David Lopez, a professor at Rutgers Law School and a former EEOC general counsel.
“I think the district court court sort of disregarded the fact that the music was derogatory toward women,” he said.
But offensive music alone isn’t likely to support a Title VII sexual harassment claim, legal observers say.
“That would be a tough case to make,” said Oberti. “There would have to be a pretty extreme set of facts.”
Aside from the music they accused S&S Activewear of tolerating, the warehouse workers alleged other claims, including that some employees openly shared pornographic videos at work and that both male employees and supervisors “pantomimed sexual intercourse” while listening to the lyrics being played.
In the Tesla case, the female worker said the music was filled with references to women as “bitches,” graphic references to sex, and other offensive terms. Management also ignored those concerns about a male colleague who repeatedly harassed her by making unwanted sexual advances, the suit alleges.
The sexually hostile work environment was so severe that it forced her to quit, she said.
Management shouldn’t brush aside employee concerns about music at work, Epstein Gluck said.
“Take the complaint seriously,” she added. The cases against S&S Activewear and Tesla “are perfect examples.”