Sexual harassment is a common theme on this blog. But, a recent case has had me thinking about the real extent of hostile environment sexual harassment. In the case, the Ninth Circuit Court of Appeals ruled that playing music containing sexually derogatory and violent content in the workplace can generate a hostile environment, violating Title VII.
If you work in a music-oriented business (or even if you don’t- heck, MOST businesses or their employees play music at least sometimes!), this might be of interest to you.
WHAT IS HOSTILE ENVIRONMENT SEXUAL HARASSMENT?
So, what IS hostile environment sexual harassment, you ask? It’s exactly what it sounds like- it’s behavior that creates an environment that is so hostile that a person cannot effectively do their job.
This is in contrast to the “other,” perhaps more clearly defined sexual harassment (in US law)- quid pro quo sexual harassment. Quid pro quo, which means “this for that,” in Latin, is essentially a sexual exchange. It’s like when a boss says, “If you have sex with me, I’ll give you a promotion,” or “If you don’t, I’ll fire you.” Perhaps they wouldn’t say it quite so bluntly, but you get the idea. It’s Harvey Weinstein Sexual Harassment (TM). When you see it, you think, “THAT is sexual harassment.”
Hostile environment suffers, definitionally, from its lack of clarity. It can, in essence, be “in the air.” This makes it hard for people to know what it looks like in practice— when it’s happening to them, when they are doing it to someone else, or when they witness it.
So, let’s take a moment to clarify it a bit and talk about how this shows up in music spaces. As a quick content warning, I will obviously be discussing sexual harassment here, but also assault, here.
First, hostile environment sexual harassment lives under the broader category of workplace harassment, which includes all harassment based on legally protected characteristics, which in the US include: race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), and disability and genetic information (including family medical history).
That means that when we are talking about sexual harassment, we are specifically referencing sex, pregnancy, sexual orientation, and gender identity. That means that anything that makes someone uncomfortable or feel degraded based on sexual content, their gender, whether or not they are pregnant, for being gay, or being trans or non-binary could be considered sexual harassment. This includes sharing stereotypes related to these, as well.
WHAT BEHAVIORS DOES THIS INCLUDE?
Hostile environment sexual harassment includes a pretty broad range of behaviors and experiences. It can be anything from looks that someone receives to jokes overheard in another room.
The case mentioned above specifically describes a situation at a workplace where employees were playing sexually degrading and violent music in the space of the workplace. In this case, it can make other employees feel uncomfortable based on their gender, gender identity, sex, or even a perceived sexual threat sent through the message of the lyrics.
This might seem heavy-handed. If you listen to Cannibal Corpse in your workplace (I worked in a record store in college where we would play it to scare away customers at closing), that might feel like, “What’s the big deal? It’s just music!”
But think about it. If you have an identity that causes you to feel constantly under the threat of violence, you are going to potentially be a bit more sensitive to someone singing about the fact that they think you are only important because of your body, or singing about actually doing harm to you, even if it’s just implied.
There is a book by an author named Timothy Beneke called Men on Rape and I think about it a lot in relation to this topic. He discusses the ways that:
⊙ The threat of rape alters the meaning and feeling of the night
⊙ The threat of rape alters the meaning and feeling of nature
⊙ Cis women, trans, and non-binary individuals need more money because of rape and the threat of rape makes it harder for them to earn money
⊙ The threat of rape makes can make individuals more dependent on cis men
⊙ The threat of rape makes solitude less possible for cis women, trans, and non-binary people
⊙ The threat of rape inhibits cis women, trans, and non-binary individuals’ expressiveness
⊙ The threat of rape inhibits the freedom of the eye
Someone doesn’t actually have to have experienced sexual assault for that threat to be there, but you can imagine that if someone has, that hostile environment can have an even harsher impact, making it even more difficult for someone to effectively do their job. I think it’s pretty easy to see how this would work similarly for threats against someone based on their race, ability, or additional protected classes under workplace harassment more broadly.
So, the behaviors that make up hostile environment are wide-ranging. There is language that says that hostile environment harassment must be “pervasive, and severe.” This might include one particularly severe incident or a build-up of what might be viewed as more “minor” incidents. But it has been found in cases that one offensive remark alone can be deemed sexual harassment, so the interpretation can be pretty broad and differs state-by-state.
With that, here are a range of behaviors that could be considered (outside of things that are more easily defined as harassment such as touching, assault, indecent exposure, or quid pro quo):
Gestures
Noises
Jokes
Stereotypes
Name-calling
Staring or leering
Questions
Oversharing
Rumors
Staring
Misgendering
Innuendos
Discussion about body or appearance
Posting/sharing sexual or gender stereotypical images
Sexual texts
Upskirting
When I’ve worked with companies to create policies around dress in the industry people often say, “people can wear whatever they want!” But if you ask them whether someone could wear a Cannibal Corpse shirt, for example, they start to rethink it.
WHO DOES THIS INCLUDE?
Hostile environment sexual harassment can be committed by anyone of any gender against anyone of any gender.
It’s also important to note that anyone who has overheard someone engaging in sexually harassing behavior, even if they aren’t a target, can report it. If they are made uncomfortable by it, that’s enough. It can also be committed by someone who is a supervisor or someone who is a direct report and it can be committed by an employee or customer.
WHERE CAN THIS HAPPEN?
Of course, traditional offices and brick and mortar workplaces can be sites for hostile environment sexual harassment, but it can also occur virtually or electronically or in-person outside of work hours. So, this includes messages, for example, sent via text, email, Slack, social media or other online platforms, or if it happens when coworkers are getting drinks at a bar after work.
WHEN CAN THIS HAPPEN?
Hostile environment sexual harassment can happen anytime, even outside of work hours, as mentioned above. The key is that the behavior is impacting someone’s ability to do their work, even if the offense doesn’t happen at work or during work hours.
WHAT DOES THIS LOOK LIKE IN MUSIC SPACES?
In music spaces, this might look like posters, t-shirts or other merch, or music that includes sexually derogatory images or language. It could, potentially, include imagery on music gear products such as offensive pedal, guitar, or synth names or imagery. Jokes or memes shared on a gear company, band, or venue’s social media could also potentially contribute to a hostile sexual environment. It could also look like a coworker sending harassing messages, leering at them at a show, or spreading sexual rumors about them within a music scene. Unfortunately, there are so many potential manifestations here that I can’t share them all, but hopefully, you get the idea.
Is it likely that sharing one Eminem song, crappy metal flyer with a woman’s head cut off, or offensive pedal name alone would be considered hostile environment sexual harassment? No. But, it’s possible, and all three at once could make for a serious case.
HOW CAN YOU PREVENT IT?
Being really clear about policies and ensuring they are shared with your employees and enforced by managers is important here.
With regard to music, if someone is listening to potentially offensive music, you might have an anonymous reporting system that goes to a manager if it’s distracting in a harmful way (and honestly, that might be a good idea, even if someone is just playing music that you really can’t stand). You could state that employees can listen to whatever they want on headphones. Be clear about what’s appropriate for clothing, as well. For behavior, ensure that your employees are trained up on sexual harassment and know what it looks like. Encourage a zero-tolerance policy and train everyone on bystander intervention, so they know how to stop it if it as it’s happening.
This doesn’t mean that everyone has to walk on tiptoes all the time. But it does mean that clarity is important. As always, trust-building is key here, too. If direct communication isn’t part of your training with staff, I’d recommend it. It’s best to set up a situation where folks can call each other in on things as they happen. It’s so much better to address any training needs and culture needs on the front end than having to deal with the harm to individuals, brand, and culture after the fact.
WHAT IF IT HAPPENS TO YOU?
If hostile environment sexual harassment happens to you, you can report it to your manager or HR department and there should be reporting policies within your employee handbook. If you don’t feel ready report immediately, documentation is your friend. That means documenting each time an incident occurs, what happened where, when, and who was there to witness it. This can help build a case when you are ready to report- showing how “pervasive” the harassment is. If you are in a small company and your boss is either the person perpetrating the harassment or you don’t feel comfortable reporting it, you can report it to the EEOC in the US and most states have supports at local agencies and non-profits, as well. Also, keep in mind that retaliation against sexual harassment is illegal.
Most companies in the industry want to create a positive, supportive environment, but lax policies and music culture can seep into the workplace in a way that is detrimental to employees, customers, culture, and company as a whole. Getting in front of it through, can be a huge help to keep everyone feeling psyched about, comfortable and supported in the environment. And everyone wants that.