An employer could be found liable for condoning sexual harassment by allowing the playing of sexually explicit rap music in the workplace, even if it offends men as well as women.
The situation developed at a700,000 square foot warehouse in Reno, NV, operated by S&S Activewear. A lawsuit by seven women and one man charged that a hostile work environment was created because supervisors were allowed to blast loud rap music throughout the workspace containing violent and obscene lyrics.
Male employees were said to have shared sexually pornographic videos and made sexual hand gestures, body movements and made sexual comments. This went on almost daily for two years, continuing after numerous employee complaints.
The employer tried to defend the music as “a motivational tool.” A lower court judge allowed some of the charges, but she dismissed the claim that the music created a sexually hostile workplace because both men and women had complained.
A federal appeals court disagreed and reinstated the charge, concluding 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.”
They also scorned the district court judge’s dismissal of the music claim by noting that men were offended by the lyrics, termed by the appeals court as an “equal opportunity harasser defense.”
The federal judges said, “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.”
Attorney Frank Shuster of the Constangy Brooks Smith & Prophete law firm, said “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.”