What happens if an employee claims harassment from vulgar songs playing in the workplace?

Claims for harassment in the workplace frequently include factual allegations that one employee has directed vulgar or offensive language at another employee. But what if the vulgar or offensive language is contained in song lyrics being played in the workplace? Should employers be concerned that the contents of this music may result in an employee claim for harassment?

No employer wants to censor music in the workplace. However, federal and state laws require employers to prohibit a hostile work environment, and this means employers have a legitimate right to regulate the content of communications and conduct in the workplace.

To ensure compliance with the anti-discrimination laws, most employers adopt written harassment policies that prohibit, among other things, “sexual epithets, jokes, written or oral references to sexual conduct,” and “slurs and negative stereotyping, denigrating jokes” in any place in the workplace, on company time or using company equipment by email, phone, text messages, social networking sites or other means.

Certainly, no one questions the right of employers to prohibit Playboy pinups, catcalls, racial and religious slurs, and unwelcome touching in the workplace. The same analysis should apply to all communications, content or conduct in the workplace.

Many song lyrics nowadays are very explicit by any objective standard. Some include repeated profanity; words that are sexist, racist or ethnically offensive; or graphic details of various sexual conduct. Admittedly, there are songs where the issue of vulgarity or offensiveness is a matter of judgment. But in many cases, there is simply no room for debate, and when these lyrics are played on repeat throughout the day, it is easy to imagine a harassment complaint that might reference these song lyrics as reflecting a particularly tone-deaf work culture.

Of course, the mere fact an offensive song lyric is played in a workplace will not create automatic liability for an employer. When evaluating a claim for hostile environment, courts look at the totality of the circumstances, including the frequency and severity of the discriminatory conduct; whether such conduct was physically threatening or humiliating, as opposed to a mere offensive utterance; and whether the conduct unreasonably interfered with the employee’s work performance.

More than a few isolated incidents are generally required. Courts have continuously held that “Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination” in the workplace. In several court cases where the “song lyrics” in a workplace have been cited in support of a complaint of harassment, the employer has been successful in establishing that the lyrics were not directed at anyone in particular and that the offensive language was not pervasive enough to establish a claim for actionable harassment.

But even though not all vulgar or profane language will necessarily result in liability, the goal for employers is to avoid the claim in the first place.

With that in mind, there are steps employers can take to avoid trouble:

• Adopt clear, written policies expressing the company’s prohibited conduct, including discrimination and harassment, and include with those policies a procedure for reporting and investigating complaints, and underscore the possibility of disciplinary action. If music is an ongoing area of trouble between employees, consider drafting a specific policy that addresses the selection and content of music (or radio stations and podcasts).

• Train employees on appropriate conduct and on the company’s policies prohibiting harassment; do not assume your employees have read and digested all of the workplace policies.

• Take all complaints seriously, especially when they include facts that sound similar to the conduct prohibited in the company’s harassment policy. In other words, if an employee complains that he/she finds the lyrics in a song played in the workplace personally offensive because, for example, they contain racial slurs or are sexually graphic, respond immediately and take action. The goal is to address small problems before they become big ones. Even if you do not conclude the conduct violates any harassment policy, it may be a good time to remind employees of the policy and the type of lyrics that are not permitted.

Finally, in the event your employees question your right to censor music, keep in mind that you are not passing judgment on any musical genre or style, or the musical preference of any particular employee.

The goal is merely to regulate language that runs afoul of the company’s policy. At all times, employees remain free to listen to whatever music they prefer outside of the workplace.

Peg O’Brien, a director at McLane Middleton and a member of the firm’s Employment Law Practice Group, can be reached at 603-628-1490 or margaret.obrien@mclane.com.