The mind boggles; my mind, anyway. S&S Activewear, according to a lawsuit, proposed as a class action in 2020 by a group of former employees, pumped loud, “sexually graphic, violently misogynistic music” through at least five speakers across a large warehouse. Artists like Eminem and Lil Wayne were heard performing rap and hip-hop employing vulgar language, often with lyrics that described violence towards women.

One song cited was Eminem’s 2000 hit “Stan,” about an obsessed fan taking the rap star’s music so literally that he kills his pregnant girlfriend and himself by driving off a bridge. Well all righty then! Management shrugged off complaints about this junk being played in the Nevada warehouse according to the suit, in defiance of the company’s own sexual harassment policy. This fostered a hostile work environment environment where employees shared porn videos and made inappropriate remarks and gestures towards female employees. The suit claimed that the company’s HR manager told at least one woman to just ignore the music.

A trial court—this boggled my mind too—granted S&S’s motion to dismiss the case on the grounds that the music “did not constitute discrimination because of sex” because it offended both men and women! M. Margaret McKeown, an appeals court judge in the US Court of Appeals for the Ninth Circuit, wrote the Court’s opinion rejecting that ridiculous ruling and holding that the lawsuit was wrongly dismissed. McKeown pointed out that harassment does not have to be directed at any one individual to be considered harassment, and multiple genders being offended by the same content doesn’t stop harassing conduct from violating Title VII of the Civil Rights Act, the anti-discrimination law the original suit was based on. I thought this was rather clearly indicated by various precedents; for example, in my sexual harassment trianing seminars, I often cite the case of a female employee who successfully brought a Title VII claim against her employer because of male coworkers playing a “crude morning show” on the radio loudly for everyone in an office to hear.

“Whether sung, shouted, or whispered, blasted over speakers or relayed face-to-face, sexist epithets can offend and may transform a workplace into a hostile environment that violates Title VII,” McKeown wrote.  It’s embarrassing that anyone, but especially other judges, would have to be told that in 2023. Now the case goes back to be tried on the facts.

I must mention that Judge McKeown was member of my Georgetown Law Center class, although while she was studying, I was putting on Gilbert and Sullivan shows. Small, quiet, modest and unassuming, Margaret may have been the last classmate I would have guessed would become a prominent jurist….which shows what kind of judge I am.

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Source: Insider