A License for Hip-Hop Harassment Immunity?

A New York jury's verdict in a discrimination case against The Source magazine suggests raunchy behavior is so endemic to the hip-hop industry that employers may be virtually immune from liability for sexual harassment.

The federal jury awarded $15.5 million in damages to Kimberly Osorio, the first female editor-in-chief of the “hip-hop bible,” on her claims of retaliatory discharge and defamation. She alleged that The Source co-founders Ray “Benzino” Scott and David Mays fired her in March 2005 for making a sexual harassment complaint.

But the plaintiff lost on her underlying hostile work environment claim as the jury apparently bought the defense theory that sexually-charged behavior was to be expected at a magazine “about a lifestyle where sexual comments, jokes and innuendo were the norm.”

U.S. District Judge Jed S. Rakoff had summarily dismissed all the claims of co-plaintiff Michelle Joyce, a former vice-president of marketing at The Source.

“Although no one would argue that the work environment at The Source chaste, it never rose to the level of being severely and pervasively hostile,” defense counsel Mercedes Colwin (Gordon & Rees, New York) argued in a court brief.

Osorio alleged that, among other things, Scott asked her repeatedly for sex, bragged to her about his sexual exploits and interrogated her about her sex life. According to an amended complaint she filed in March 2006, female staffers “would often be forced to hide in their offices and avoid walking through the corridors out of fear of being sexually harassed.”

Plaintiff's co-counsel Kenneth P. Thompson (Thompson, Wigdor & Gilly, New York) also played to the jury a tape of a tirade in which Scott called a female editor at another publication a “fucking slut monkey.”

The hostile work environment standard adopted by the U.S. Supreme Court, however, requires “careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1997).

Applying that standard, the California Supreme Court ruled earlier this year that writers on the TV show “Friends” did not sexually harass an assistant by indulging in untargeted “sexual antics and sexual talk” while brainstorming script ideas. Lyle v. Warner Bros., 38 Cal. 4th 264.

The Source could not argue that Scott and Mays behaved crudely to inspire their creative muse. But Colwin stressed that the excesses of the rap industry were well-known to Osorio when she accepted the editor position and that a reasonable person “could not realistically have anticipated a pristine environment” at the magazine.

"They used the 'f---' word, the 's---' word, the 'damn' word," Colwin told the jury. "It was not a gender-specific conduct whatsoever."

Osorio still got a big award and said of the verdict that “I definitely hope this has an impact on the attitude of hip-hop toward women.” But any woman in the industry might also be excused for wondering what behavior would rise to the level of “severely and pervasively hostile.”

UPDATE

Judge Jed Rakoff cut the damages award by nearly half, signing a judgment for $7.9 million. On the retaliation claim, he said, jurors erred by awarding Osorio $4 million each from The Source, Scott and Mays instead of total damages of $4 million against all three defendants.