9th Circuit slides off slope with determination that rap music gives rise to sex discrimination claim

Like jazz before it, the ascendency of rap music from marginalized communities to mainstream pop culture demonstrates the creative, economic, and political power of Black artists in the United States. But the history of these genres reflects another, more disturbing pattern: disparate treatment from a justice system run by individuals clouded by their own prejudices against the same Black artists who provide such valuable commercial and cultural capital. Thus, when a court holds that music can give rise to a sex discrimination claim, but bases this holding on facts consisting of only rap music, we must see this for what it is: an implicit attack on a traditionally Black art form and, beyond that, a slippery slope to censorship that endangers the 1st Amendment right to freedom of expression.

In June, the 9th U.S. Circuit Court of Appeals at San Francisco held that "sexually derogatory, violently misogynistic" music played audibly at a workplace can create a hostile work environment for women, violating Title VII of the Civil Rights Act. The claims came from former employees of an S&S Activewear warehouse, who alleged that S&S enabled a hostile work environment by allowing male employees to routinely play offensive, sexist music that "served as a catalyst" for abusive conduct. The men had been making sexually graphic gestures and remarks, yelling obscenities, and openly sharing pornographic content while at work.

At first glance, this holding may reasonably seem to protect women's rights. The district court had originally dismissed the case for failing to state a claim, focusing on the music's general audibility to all workers regardless of sex, and reasoning that there was no sex-based discrimination where the music wasn't specifically targeting women. The 9th Circuit vacated this holding for hinging on an "equal opportunity harasser" defense. "[I]ntolerable, harassing conduct that pervades the workplace" does not provide a safe haven against a Title VII claim, it stated, after noting that the rap music need not have targeted any particular woman for employees to experience the content "in a unique and especially offensive way." But although the 9th Circuit may be right about the District Court's improper reasons for dismissal, its pronouncement against the music itself, rather than merely against the employees' abusive conduct, raises grave implications for law and policy.

Taken verbatim from the opinion, "sexually derogatory music audible throughout the workplace can create a hostile work environment." Without more limiting language, such a holding leaves open the possibility that the music itself can be the issue, rather than those who play it and the manner in which it is played. While the plaintiffs cite music by rappers Too $hort and Eminem for "catalyzing" the male employees' obscene conduct, they forget that billions of people listen to the same music everyday and act completely civilly. The opinion itself clarifies that context matters when analyzing workplace conduct, which must be viewed "cumulatively and contextually, rather than in isolation." It is ironic then that the court still fails to limit its holding to say that these employees' abusive behavior in and of itself was enough to constitute a hostile workplace. Rather, the court leaves the door wide open for claimants to attack rap music for innately fostering hostility.

It is not to say that the defendants' behavior here is defensible when viewed cumulatively and contextually, but solely prohibiting the playing of rap music with similar sexist lyrics in the workplace can itself become an act of subjugation. If the logic employed by the 9th Circuit continues to hold, courts can now decide what type of music can or cannot be played in the workplace. Let us imagine for a second the flood of lawsuits that can result from this outcome. Gyms, bars, clubs, and restaurants are all workplaces that typically play constant music, audible to every employee, customer and patron. In an era where rap music has essentially become pop music, its impressive reach into all corners of public spaces might soon provide a legal battleground for individuals to determine for others what types of artistic expression constitute as offensive.

This startling implication begs the question: who gets to decide what is offensive? For a more conservative individual, the artistic portrayal of female nudity could arguably be exploitative and offensive to women, putting art by some of the great masters such as Picasso and Michelangelo under legal contention. In a country with a long-running history of criminalizing its Black citizens, the slippery slope into letting rap lyrics alone constitute a form of sexual harassment will specifically target Black people. Rap music may presently be a powerful cultural and commercial force, but this does not mean that it is not fighting constant scrutiny and misinterpretation from audiences that it was not intended for and thus, who do not understand it - and even demonize it.

The extremities of rap lyricism stem from social and historical truths that are understood by some but not others. Like any other group, Black communities channel their unique hardships into art that serves both to express themselves creatively and document their shared experiences. As academics have noted, the genre of gangsta rap is deeply rooted in literary and ritual traditions of satire, obscenity, and other verbal phenomena with transgressive aims. For many, the outrageous, absurdist storytelling within rap music is humorous. It is this "construction of an explicitly fictional, comedic world coded" for a specific audience, combined with the already-prejudiced beliefs of its non-targeted audience, that make it so ripe for misunderstanding. Too $hort himself has spoken on the disconnect between his true persona and his artist persona, saying "It is entertainment to me... I have been making money off of it. I could have spoke[n] about what I really believed in, I could have been a Tribe Called Quest or KRS-One type artist, but I knew if I just write these little curses, people would want to hear that."

Even the complaint demonstrates the subjectivity and futility of defining what's legally offensive. Plaintiff Sharp's own words criticize Too $hort's "Blowjob Betty" as containing "very offensive" lyrics that "glorifie[d] prostitution," implying that sex work is something the courts should find inherently offensive. Sharp also cites Eminem's "Stan" in the complaint for its violent lyrics, ignoring that the song comes from the perspective of an obviously mentally disturbed fan, whose frustration with being ignored by his idol leads him to a psychotic breakdown. Although Sharp and her fellow co-workers are sympathetic plaintiffs, the 9th Circuit's overbroad holding leaves room for everybody to claim offensiveness. A Missouri court has already dismissed a plaintiff's claim that her co-workers' rap music was racially hostile after she alleged hearing the word "cracker" in the songs, which "promoted violence against white police officers and white people in general." Again, context matters. Without further behavior from the defendants to indicate that they were targeting the plaintiff in any way, music alone should not be criminalized, especially because it plays an important role in expressing real anxieties and frustrations about surviving in a society that discriminates against Black people.

The fearful implications of the 9th Circuit's holding go beyond its weaponization by frivolous plaintiffs - there's evidence that the legal system itself both directly and indirectly enables this weaponization. Even if the court claims that this is not an attack against the rap genre in particular, judicial history shows that rap will be attacked regardless. It doesn't matter then that this holding is facially neutral. It still raises dangerous implications for Black artists, whose music has historically been targeted more than the music of their white counterparts. Although studies have demonstrated that misogyny is commonly ascribed to just rap music despite rap lyrics having a lower percentage of sexist content than expected, legal institutions continue to criminalize rap in ways it doesn't with country or rock, which have their own pervasive issue with sexism and racism.

For example, lawyers and activists have expressed concerns with the latest string of criminal cases that allow rappers' lyrics to be used as evidence against them in trial. "Prosecutors and judges across the country seem unable or unwilling to separate the symbolism and hyperbole" in rappers' art from their real lives, explains Drew Findling, president of the National Association of Criminal Defense Lawyers. Yet only California has legislation that restricts the use of art as evidence. It is thus not enough that the 9th Circuit disclaims that its objective is not to "ascribe misogyny to any particular genre" because it doesn't have to do so explicitly. Parties, whether through the legal system or not, will do so anyway, and now they can weaponize this holding to further target rap and its predominantly Black creators.

To hold that music which offends a certain group can violate that group's civil rights protections impermissibly inserts the court into discussions it is not meant to undertake. The 1st Amendment is such a notable function of our democracy because it protects our ability to express and debate, to share and protest, and to work collectively to advance as a people. Civil rights activism, which can rely on provocative language (that might also appear threatening to outsider groups), would not be the same were it not for the country's commitment to a robust freedom of speech privilege. And the country would certainly not be the same if free and radical discussions about interracial marriage, or women's rights over their bodies, or police brutality, could have stayed further suppressed by the mainstream's opinion that such topics were offensive.

Regardless of the 9th Circuit's intention, its holding commands immediate concern from anyone who values the freedom of speech, and the political, social, and economic strength that comes from that right.