Explicit music at work a legal risk

 In Employment

By Jake Perez, Editor at LinkedIn News

Playing music with raunchy, derogatory or obscene lyrics at work can create a hostile environment and might even violate laws against sexual discrimination, a federal appeals court ruled Wednesday. The decision will allow eight former S&S Activewear employees to move forward with a lawsuit against the wholesaler. The ex-warehouse workers say S&S blasted “sexually graphic [and] violently misogynistic” music throughout its facility in Reno, Nevada, and that this music acted as a “catalyst” for male staffers to engage in abusive behavior.


By Eric Meyer

An employer in Nevada “blasted” Eminem and Too $hort from “commercial-strength speakers,” making it “nearly impossible to escape.” Employees complained about it “almost daily.” But management brushed those complaints aside and defended the music as “motivational.” This went on for almost two years. Then eight former employees sued for hostile work environment.

They claimed that routinely playing “sexually graphic, violently misogynistic” music throughout its warehouse created a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.

Yesterday, the Ninth Circuit Court of Appeals weighed in on “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.”

The short answer, according to the appellate court, is yes.

There’s a slightly longer explanation.

“First, harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim. Second, the challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim.”

In a post yesterday, I explained how anyone who claims a hostile work environment must show that: (1) s/he belonged to a protected group, (2) s/he suffered unwelcome harassment, (3) the harassment was based on a protected class, (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and (5) the defendant “knew or should have known” and did nothing.

And the Supreme Court has rebuffed any “defense for an employer to say it discriminates against both men and women because of sex.” That’s from Bostock v. Clayton County. “Instead of avoiding Title VII exposure, this employer doubles it.”

“Applying these core principles…lyrics loaded with such sexist slurs expose female employees to uniquely ‘disadvantageous terms or conditions of employment,'” reasoned the Ninth Circuit.

The appellate court noted that its analysis aligns with the earlier decisions from at least four other circuit courts.

I like “Stan” by Eminem, one of the songs about which the plaintiffs complained. But the employment lawyer in me says maybe don’t make it a practice to expose your employees to lyrics “detailing a pregnant woman being stuffed into a car trunk and driven into the water to be drowned.”

Instead, I suggest any number of songs from the Rocky IV soundtrack. They got Rocky to train in Siberia like a MF, defeat a steroid-abusing Russian champion against all odds, and single-handedly end the Cold War with the USSR.

You may get some odd looks from Gen Z in the workplace. But trust me. If you play “War” by Vince Dicola as I walk up the courthouse steps, I’m leaving with a “W” — even at a routine case management conference.

#TheEmployerHandbook #employmentlaw #humanresources





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