Want to Play Music at Work? Follow This Rule to Make Sure You Aren't Slapped With a Lawsuit.

According to the Ninth Circuit Appeals Court, playing some types of music in the workplace could be a basis for sex-based discrimination.

I shouldn't have to write an article saying "don't play sexually graphic, violently misogynistic ?music in the workplace." That should be a no-brainer for any business owner. Don't do it.?

But is it illegal ?

For something to be considered sexual harassment and therefore illegal, it has to meet three criteria :

That the harassment was based on sex; That the harassment was sufficiently pervasive to affect a term, condition, or privilege of employment; and That the employer knew, or should have known, about the harassment and failed to take prompt, corrective action.

Then there are three more qualifications if those are met:

Was the verbal or physical conduct of a sexual nature; If so, was it unwelcome; and Was there a quid pro quo for the sexual conduct and/or a hostile work environment?

How does music fit into these criteria??

The warehouse with sexually graphic music

According to a recent court case , an apparel manufacturer called S&S Activewear allowed employees to play objectionable music throughout its 700,000-square-foot warehouse.?

Blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape. Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict -- let alone evade -- the music's reach.

The lead plaintiff complained to HR , who reportedly told her to "ignore" the music.?

But soon, the issue wasn't just the music itself. The music allegedly prompted a series of further actions. As the court's decision notes, "the music allegedly served as a catalyst for abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos."

In other words, it sounds like it meets the criteria for sexual harassment . Seven women and -- critically -- one man filed a lawsuit claiming sexual harassment. But then S&S Activewear pulled what they thought was the get-out-of-jail-free card.?

Equal opportunity harassment

Being a jerk at work isn't illegal in the United States. You have to be a jerk for an illegal reason -- like discriminating against someone based on their race, gender, or religion. S&S Activewear claimed that while the music was sexually explicit, women weren't the only ones to complain; many men did too, and a man was even named in the lawsuit. Therefore, the harassment failed to meet the first criterion; that "the harassment was based on sex."?

The district court agreed, dismissing the case. But the plaintiffs appealed, and the Ninth Circuit overturned the decision. Just because both men and women were offended didn't mean the women didn't have a case, the Ninth Circuit reasoned:

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 other words, the "hostile work environment" standard still holds, and you can't just say, "Hey, men were offended too! Therefore it's not a problem." Men and women can both be offended in different ways. Therefore, the case now goes back to court for determination. Important note: This ruling doesn't say that there was in fact sexual harassment, just that there is enough evidence to go to court.?

Lessons for your business

I can find lawyers who would give you nuanced "it depends" answers and cautions about where the line is at work, but I will be a bit bolder, as I'm not a lawyer and I don't offer legal advice. Here it is:

Do not play "sexually graphic, violently misogynistic" music at work. Even if everyone says they love it. Just don't do it. There are plenty of music choices that aren't "sexually graphic, violently misogynistic."

Save yourself the headache.?

Article by Sizanne Lucas @ Want to Play Music at Work? Follow This Rule to Make Sure You Aren't Slapped With a Lawsuit | Inc.com