When does music played in the workplace become harassment or discrimination?

What makes a safe workplace? When most people think about psychological safety in the workplace, they think about the human interactions between employees and those they work with. But does the type of media permitted in the workplace play a role in employee safety? A recent U.S. case sheds light on this issue and provides important considerations for employers in Ontario.

What happened?

In 2020, eight former employees filed a lawsuit against their former employer because of the types of music played in the workplace. The employees worked in a clothing warehouse in Reno, Navada and said they were forced to listen to songs that glorified abuse and violence against women. Inside the warehouse, forklifts drove around with commercial-strength speakers “blaring” the music that was “inescapable” and “would often overpower” the facility. The employees bringing the lawsuit consisted of seven women and one man.

The lawsuit claimed that the music contributed to a workplace environment where discrimination and harassment ran rampant. According to the lawsuit, the music influenced employees to act out in various ways, including by:

• making sexual remarks
• acting out sexual acts
• yelling obscenities

The employees’ lawyer suggested that the employer permitted “misogyny and violence to be loudly broadcast” in the workplace and so invited employees to act improperly.

Warehouse employees made daily complaints about the suggestive songs played but the music did not stop. Several employees allegedly quit because of the music, among other issues.

The court’s decision

In December 2021, the lawsuit was dismissed by a lower court because the music offended male and female employees, and so was not discriminatory based on sex.

But last month, the U.S. Court of Appeals for the Ninth Circuit overturned the lower court’s decision. In its decision, the U.S. Court of Appeals said that “an employer cannot find safe haven by embracing intolerable, harassing conduct that pervades the workplace.”

An employer’s duties

The main law triggered by the employee’s lawsuit is the American Civil Rights Act, which states that employers have a duty to protect their workers from discrimination based on various grounds, including sex. Employers in Ontario have similar duties under the Occupational Health and Safety Act (OHSA)and Human Rights Code (Code). For example, the OHSA says an employer must take every reasonable precaution to protect their workers. In addition, the Code states that every employee is entitled to equal treatment without discrimination based on various protected grounds, including sex. The Code also says that every employee has a right to be free from harassment based on those same prohibited grounds. Similar duties exist under the Canada Labour Code and Canadian Human Rights Act.

The law is clear: Employers play a central role in creating and monitoring the culture of their workplaces and ensuring that employees feel safe and secure. Behaviours and conduct that cause employees to feel uncomfortable, unsafe and unwelcome have no place at work and employers have a duty to effectively address those issues when they arise. While human interactions between colleagues may be a more prevalent and obvious source of harassment or discrimination, the media permitted in workplaces can also contribute to those feelings. This explains why conduct like sharing sexually explicit images has been found to be sexual harassment under the Code.

It is worth reiterating that the warehouse employees told their employer that the music was offensive and unwelcome. Under the OHSA, workplace harassment or workplace sexual harassment will be found when the conduct complained about is known to be unwelcome or should reasonably known to be unwelcome. The employer clearly knew the effect the music was having on their employees and had every reason to stop it.

For these reasons, the lawsuit described above provides an important reminder to Ontario employers that it is their responsibility to address unwelcome conduct that offends employees. Turning a blind eye or neglecting to resolve those issues carries several repercussions, including low employee morale, problematic behaviour and costly lawsuits.