Offensive Music Lyrics as Title VII Violation, Quirky Question # 73

Quirky Question # 73:

We have a work environment where employees have cubicles that are approximately shoulder height.  Some employees have radios or CD players in their cubicles.  We generally don’t interfere with their musical selections, recognizing that people have different musical tastes.  (We do ask our employees to keep the volume down so they don’t bother their co-workers.)  We recently received a complaint from one of our African American employees.  He was upset that some of the workers occupying nearby cubicles play rap music with lyrics he finds offensive.  Is this something we need to worry about?  We don’t want to become the thought police.

Dorsey’s Analysis:

You do have something to worry about, but it is not whether your company risks assuming the role of the “thought police.”  Your company has a legitimate right to regulate the content of the information your employees bring into the workplace, regardless of the method by which this information is introduced.  For example, you undoubtedly prohibit your employees from bringing pornographic magazines into your company’s work environment.  Similarly, I assume that your company prohibits your employees from introducing pornographic or otherwise offensive material into the work environment via your computer system.  Most businesses also regulate the information brought into the workplace and disseminated further via the company’s email system.  Likewise, companies legitimately prohibit the type of DVDs that employees may bring into the work environment, either for their own use or to be shown to others.

The analysis that applies to these other media should not be markedly different when the offensive material is brought into the workplace via the radio.  Several days ago, for example, I was driving with my 16-year old son, listening to a music CD he had made from various I-Tunes songs he had downloaded.  As a particular song came on, he demonstrated his sensitivity to our differing musical and language sensibilities by observing, “Dad, you might want to skip this next one.”  The reason for his observation was the language used in the next song and his concern that I might be offended by the lyrics.

The fact is that music lyrics today, particularly in certain musical genres, are very explicit.  Many songs include profanity.  Many others involve words that are sexist, racist, or ethnically offensive.  Other songs include graphic references to certain parts of human anatomy and/or descriptions of various types of sexual conduct.  Given these facts, it is not surprising that one or more of your employees might be offended by the music being played in a co-workers’ cubicle.  It is important for your company to be attuned to these issues and make clear that certain types of lyrics are inconsistent with your company’s policies regarding discrimination and/or harassment and will not be allowed in the workplace.

In my view, this should not be an overly difficult calculus.  Songs that involve pejorative, slang terms for members of certain genders or races or religions are problematic.  Songs that make graphic sexual references are problematic.

I recognize, however, that most songs are far from explicit and may involve questions of nuance, inference, double-entendre, or subtlety.  I have no doubt that many readers could send me examples of lyrics that would be difficult for companies to evaluate in terms of potential offensiveness.  As for songs involving these kinds of lyrics, I’d simply reference the standard observation articulated by the U.S. Supreme Court with regard to harassment cases – each case must be evaluated on a “totality of the circumstances” analysis.  Moreover, companies do not have to base their policies or practices on the hypersensitivities of the idiosyncratic employee.

I am aware of one relatively recent case that implicated many of these issues.  In EEOC v. Novellus Systems, Inc., No. 07-4787 (N.D. Cal. June 23, 2008), the EEOC sued the defendant corporation in relation to the experience of an African American employee who was offended by a co-worker who repeated offensive rap lyrics.  The Vietnamese co-worker allegedly played rap songs and repeatedly sang the songs’ derogatory lyrics, including the “N-word” in the presence of his co-worker.  The EEOC contended that the company both failed to respond to the African American employee’s complaints and retaliated against him for complaining.

Although Novellus did not admit liability, the company entered into a two-year consent decree that required the company to modify its anti-discrimination policy to include a zero-tolerance statement for music that included “racially derogatory terms and names.”  One last note – it is not just music lyrics that you should monitor.  Some radio talk shows are careless in terms of how they refer to different racial and ethnic groups.  Some are blatantly sexist.  If your workers listen to these types of programs and their co-workers can easily overhear these broadcasts, the same issues addressed above may be implicated.

Finally, as noted above, I don’t think you need be overly concerned about your company’s role as the “thought police.”  You are not attempting to regulate how your employees think; you are merely regulating their conduct in the workplace.  Your employees, of course, can listen to any music they enjoy regardless of its content, or any talk-show radio programs they find informative or amusing, outside of the workplace.  You are merely establishing a minimum set of standards regulating how your employees behave in the workplace.  Your company has the right to do so.