New ‘Howard Stern’ ruling opens door to discrimination suit
July 17, 2008 by Fred HosierPosted in: Here comes the judge, Special Report
Do any employees at your company play radio programs by shock jocks such as Howard Stern, Bubba the Love Sponge, or Opie and Anthony? If so, it could create a problem. A federal appeals court has ruled regular exposure to language and radio programs that are particularly offensive to women but not targeted at a particular worker may still support a hostile work environment claim.
Ingrid Reeves was one of only two women who worked for C.H. Robinson Worldwide, Inc. (CHRW). Reeves worked in a cubicle environment, surrounded by men in other cubes (the other woman didn’t work near her).
Reeves alleged that sexually offensive language permeated the work environment near her cube at CHRW every day. She also claimed that sexually explicit radio programs played on a daily basis (the text of the lawsuit never mentions the name of the show).
The comments included three derogatory terms used to refer to women and other crude sexual terms (if you want to know exactly how far the comments went, you can read a PDF of the court’s decision here).
Reeves said she complained to her co-workers and supervisor many times, but the comments, which weren’t directed at her, continued.
Reeves was also offended by a radio program that was played every morning on the stereo in the office. She said discussions on the program about female anatomy and sexual topics offended her.
When Reeves complained about the radio program, she was often told she could play her own music or change the station. However, she testified that if she did so, the other employees would soon change the radio back to the program that offended her.
CHRW’s branch manager testified that he agreed with Reeves’ accounts of some words being used in the office. He also said he had one or two talks with one of Reeves’ co-workers about language and mentioned language to others during performance evaluations after Reeves complained.
Reeves resigned from her job and filed a complaint against CHRW two years later alleging that the use of sexually offensive language (including that heard on the radio) created a hostile work environment in violation of federal law.
She argued that even though the language wasn’t directed at her, it created a hostile work environment.
CHRW argued that the lawsuit should be thrown out because men and women were subjected to the same behavior in the office.
Previous decision on race pertains to gender
The Eleventh Circuit court noted that it’s well established that racially offensive language need not be targeted at the plaintiff to support a hostile work environment claim.
CHRW argued that the court shouldn’t look to race cases in connection with this one because “race is different” than gender.
But the court disagreed. It said the conversations and jokes that allegedly permeated the office on a daily basis were more degrading to women than men, and that the radio program claims were similar. So even if men and women were equally exposed, the language had a discriminatory effect on Reeves because of its degrading nature.
The court said a jury could reasonably find that the offensive language and radio program interfered with Reeves’ job performance, even though the conduct wasn’t directed specifically at her. It sent the case back to a lower court for trial.
What do you think of the court’s decision? Does this raise the bar for companies trying to prevent themselves from being perceived as having a hostile work environment? Let us know that you think.
July 18th, 2008 at 9:39 am
I totally agree with the court’s decision. I can’t believe they even allowed the radio stations like Howard Stern to be played in a cubicle environment, let alone the company.
What was the award for Reeves?
July 18th, 2008 at 10:36 am
The court decision was “dead on”. There are a lot of radio programs that can be considered offensive in the workplace. The Manager of this branch and CH Robinson Human Resources should have done their due diligence by conducting and investigation and appropriatetly disciplining the employees who switched the radio back to the offensive station. The easier approach would have been to “stop” any radio program from playing in the office.
Personally, I might laugh at some of the jokes because they are meant for entertainment purposes only. However, when you play a station on a regular basis it only permeates the office by way of conversation and other comments by co-workers and can definitely be considered hostile to an average person. This kind of radio station has no place in an office environment.
July 18th, 2008 at 10:51 am
To me, it’s a two headed monster. It show both the lack of courtesy & respect that is now rampant in our society as well as the thin skins so many of us now have. How can you win? I personally don’t have time to actively listen to a show to even know what’s being said, let alone whether it is offensive.
July 18th, 2008 at 11:17 am
The ruling is understandable, but the continued political correctness mandated by the court system, if not the populace is going to reach the point that there will necessarilybe no outside transmissions permitted in the workplace nor will it be conducive for people to simply speak to one another.There is a rationale for sensitivity, but it is also used for other purposes, unfortunately.
July 18th, 2008 at 3:11 pm
I’m not sure what kind of business this was, but in virtually any office environment it would be very distracting to have a radio playing loudly, regardless of the content. As an employer I want to encourage behaviour that is conducive to a good productive work environment. Clearly, this was causing problems.
Also, I don’t see this as a political correctness issue at all. I have very strong opinions about that and agree that we have gone way overboard in this country trying not to offend anyone in any way. Everyone should have the right to listen to what they want - in private. However, this is a work place and programs of the nature involved in this case have absolutely no place there.
July 18th, 2008 at 3:52 pm
I agree with the court’s decision 100%. Anyone who has ever heard even part of the Howard Stern show knows that there is some really highly offensive and sexually explicit language used. This show, in my opinion, is not an appropriate radio station for most places of business.
The employer’s argument that the case should be thrown out because both men and women were equally subjected to the offensive language is just plain ridiculuous. It is not up to the employer to decide that if one person isn’t offended then the other shouldn’t be. Furthermore, she told her employer it was offensive and the employer did nothing to effectively resolve the problem. It’s too bad they had to learn the hard way but they did have opportunity before this became a court case!
July 18th, 2008 at 3:57 pm
Editor’s note: I must emphasize again, as the original story says, that the lawsuit never specifies exactly which radio program was played. The three programs listed at the beginning of the article are just examples that are available on a nationwide basis on satellite radio (Stern and Bubba on Sirius, Opie and Anthony on XM). There are many local radio shows that may be considered “shock jocks” also.
July 21st, 2008 at 10:21 am
I always tell our employees if you wouldn’t do it, say it, play it, etc. if the owners of the company or their mothers walked into the room, then then they best not do it. So far, no one has misunderstood that concept.
July 22nd, 2008 at 1:38 pm
The intent of the rulings on racially offensive language creating a hostile work environment is to prevent and protect human beings from being degraded. It doesn’t matter that not all humans feel degraded by a particular thing, because even one is worth protecting.
It’s the same situation here with offensive language and talk about female anatomy. It isn’t a physiology class! And it’s far from educational. Of course it’s degrading.
Do what you want at home in your private surroundings. The workplace is no place for that kind of “entertainment.”
July 23rd, 2008 at 12:21 pm
In my professional opinion, if it is offensive to even one person, it needs to be dealt with. The employer did make steps (talking with one person specifically about his behavior and others during performance evaluations) but he never effectively resolved the issue. It would have been more productive to say that the radio staion in question is not allowed, or if necessary no radio stations are allowed. I have to agree with the Court’s decision that this type of environment could be hostile, especially if derogatory remarks are being made directly to, or about the female gender, the ONLY female employee in this area. There are other law suits that could have came out of this situation.