Monday, September 23, 2013

Can an employee assume the risk of harassment?

For the uninitiated, the Insane Clown Posse are rappers. They wear clown makeup, and perform songs titled, “Santa’s a Fat B**ch,” “Cherry Pie (I Need A Freak),” and “F**k the World.” It is an understatement to characterize their songs as violent and misogynistic. Don’t believe me? Then check out these lyrics, or this video (both decidedly NSFW).

So, here’s my question. What kind of workplace did Andrea Pellegrini think she would be getting when she took a job as attorney and publicist for ICP’s Psychopathic Records? According to her recently filed sexual harassment lawsuit, her bosses fired her after she complained, among other things, about being exposed to dildos and “vagina tighteners” in the workplace.

I believe that every employee has the right to a workplace free from harassment of any nature, including exposure to sexually explicit material. However, couldn’t Ms. Pellegrini have seen this coming before she accepted her job? Didn’t she know what she getting herself into? Her bosses are famous for writing and performing these lyrics:

F**k Celine Dion and f**k Dionne Warwick, you both make me sick, suck my d**k.

What did she expect!? Those who chose to work on a Quentin Tarantino movie should give up the right to complain about the language. Those who choose to work for Snoop Dog should give up the right to complain about second-hand smoke. And those who choose to work for Shaggy 2 Dope, Violent J, and Dirty Dan should give up the right to be free from sexually explicit content.

No employee should have to put up with a sexually harassing workplace. However, to succeed on a claim of sexual harassment, one must prove that she subjectively perceived the workplace as hostile. The trier of fact in this case should take a long, hard look at whether Ms. Pellegrini was really offended by this workplace, or whether she is taking advantage of a situation to file a lawsuit. Assumption of the risk is not a defense to a hostile work environment. Yet, maybe in this case it should be.

[Hat tip: Donna Ballman]