Tuesday, April 29, 2008

Harassment by radio station

Reeves v. C.H. Robinson Worldwide, decided yesterday by the 11th Circuit, asked the following question:

Whether daily exposure to language and radio programming that are particularly offensive to women but not targeted at the plaintiff are sufficient to satisfy the "based on" and "severe or pervasive" elements of a hostile work environment claim.

The plaintiff was the only woman who worked in her area. On a daily basis, her male co-workers used a barrage of the foulest and most sexist language one could conjure. They also listened to a morning radio show

that was played every morning on the stereo in the office. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women's nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a "sexual tyrannosaurus rex." When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.

Despite both men and women being equally exposed to the same language, the court found that the language and the radio program were more degrading to women than to men. Thus, the environment was hostile to Reeves "based on" her sex. The court reversed summary judgment granted for the employer and remanded the case for trial.

The knee jerk reaction to this opinion would be a blanket ban on the playing of any radios in the workplace lest a female employee be offended by something she hears. From someone who can't do a lick of work without music playing in the background, let me assure you that such a reaction would be going overboard. The employer in this case failed not because it allowed radios to play in the workplace, but because it failed to police what was on those radios. Active policing of what employees listen to on the job is not necessary. Rather, companies should police these matters as they would any other alleged offensive conduct in the workplace -- a full and complete investigation after an employee complains or after the employer otherwise becomes aware that something offensive or inappropriate is taking place.

I'll be back tomorrow on whether language that is equally broadcast to men and women in the workplace should provide a basis for sexual harassment liability. [Hat tip: Workplace Prof Blog]

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