Blog Outline

Short on time? Jump to relevant sections by clicking the links below:

1. i.  Introduction
2. ii. Does discussing, posting, sending, or showing pornography to co-workers or employee constitute sexual harassment
3. iii. Does Ye’s alleged discussions and fantasizing about his then-wife and her buttocks amount to sexual harassment?
4. iv. Can the use of gender-based epithet in a song be enough to bring a claim of sexual harassment?
5. v. Were Ye’s alleged comments and behaviors unwelcome?
6. vi. Are the alleged actions by Ye imputable to the employer, such as Yeezy or Adidas?
7. vii. What if it is just a male dominated industry, does an employee just have to deal with it?
8. viii. Conclusion

Introduction

Recently, stories have come out that music artist and fashion designer Ye (formerly known as Kanye West), allegedly used explicit language, sexual behavior, and shared explicit images and media to assert control and fear to his employees at his Adidas subsidiary, Yeezy.

Matt Sullivan and Cheyenne Roundtree wrote an article in Rolling Stone in November 2022 entitled Kanye West Used Porn, Bullying, ‘Mind Games’ to Control Staff. To summarize, the article details an open letter that was sent to Adidas from several Yeezy team members that claims that Ye engaged in “intimidation tactics with the staff of his fashion empire that were provocative, frequently sexualized, and often directed toward women”. The behaviors alleged by former Yeezy team members about Ye include but are not limited to the following, that he:

• looked down at his foot, stared up at a woman, and told the woman “I want you to make me a shoe I can fuck.”
• Played pornography to Yeezy staff in meetings;
• Discussed pornography and showed an intimate photograph of his then-wife Kim Kardashian in job interviews;
• Showed an explicit video and photos of Kardashian as well as his own sex tape to Yeezy team members;
• Played a song for a team at the office the song “I love it” with the chorus line “You’re such a fuckin’ ho, I love it.”
• said “We really need this shoe to be done because all I think about is Kim’s ass and this shoe.’
• Told Yeezy staff on more than one occasion: “If you ever get stuck creatively, just watch porn for 10 minutes.”
• Yelled loudly at a woman over the phone, called back, and yelled at her again. 

If these employees’ assertions are true, could Ye’s behavior be considered sexual harassment? Can Ye, Yeezy or Adidas be sued for sexual harassment?  

Introduction

Recently, stories have come out that music artist and fashion designer Ye (formerly known as Kanye West), allegedly used explicit language, sexual behavior, and shared explicit images and media to assert control and fear to his employees at his Adidas subsidiary, Yeezy.

Matt Sullivan and Cheyenne Roundtree wrote an article in Rolling Stone in November 2022 entitled Kanye West Used Porn, Bullying, ‘Mind Games’ to Control Staff. To summarize, the article details an open letter that was sent to Adidas from several Yeezy team members that claims that Ye engaged in “intimidation tactics with the staff of his fashion empire that were provocative, frequently sexualized, and often directed toward women”. The behaviors alleged by former Yeezy team members about Ye include but are not limited to the following, that he:

• looked down at his foot, stared up at a woman, and told the woman “I want you to make me a shoe I can fuck.”
• Played pornography to Yeezy staff in meetings;
• Discussed pornography and showed an intimate photograph of his then-wife Kim Kardashian in job interviews;
• Showed an explicit video and photos of Kardashian as well as his own sex tape to Yeezy team members;
• Played a song for a team at the office the song “I love it” with the chorus line “You’re such a fuckin’ ho, I love it.”
• said “We really need this shoe to be done because all I think about is Kim’s ass and this shoe.’
• Told Yeezy staff on more than one occasion: “If you ever get stuck creatively, just watch porn for 10 minutes.”
• Yelled loudly at a woman over the phone, called back, and yelled at her again. 

If these employees’ assertions are true, could Ye’s behavior be considered sexual harassment? Can Ye, Yeezy or Adidas be sued for sexual harassment?  

Does discussing, posting, sending or showing pornography to co-workers or employee constitute sexual harassment?

Yes, showing explicit photos, videos or other media to employees can been found to be “based on sex”, “severe” or “pervasive” and “unwanted”, leading to prima facie case of sexual harassment. Hostile work environment sexual harassment “injects the most demeaning sexual stereotypes into the general work environment and … represents an intentional assault on an individual’s innermost privacy.” Glasgow v. Georgia-Pacific, 103 Wash. 2d 401, 407 (1985).

For example, evidence of posting, sending, or showing pornography in the workplace has been found to be enough to support a case for sexual harassment. In Fleetwood, a federal sexual harassment case in Washington, evidence of the harasser sending and showing sexually explicit videos or photos to others was sufficient evidence to prove sexual harassment. See Fleetwood v. Washington State University, No. 2: 20-CV-00355-SAB (E.D. Wash. July 9, 2021). Specifically in Fleetwood, the alleged harasser sent sexual videos and photos to non-consenting recipients. The court found that this behavior “fit[] squarely into the examples of unwelcome sexual conduct sufficient to create a hostile environment…” sustaining a claim of sexual harassment. Similarly in Andrews, the accused posted pornography of in common areas and women’s personal workspace. See also Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990). The court in Andrews also found that the plaintiffs’ case that included the sharing and posting of pornography had established a prima facie case of hostile work environment and sexual harassment. 

Therefore, it is possible, that given the allegations of Ye showing pornography and explicit images of his then-wife, including his own sex tape, to his Yeezy employees, he could certainly be sued and potentially be found liable for sexual harassment. 

Does Ye’s alleged discussions and fantasizing about his then-wife and her buttocks amount to sexual harassment?

Yes, Ye’s alleged discussions of fantasies about his wife and references to his wife’s intimate body parts could be found to be sexual harassment.

For example, in Draper, the alleged harasser told his employee about his sexual fantasies involving his wife. See Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998). The court in Draper found that the discussions about his fantasies with his wife helped support a claim for sexual harassment. 

Additionally, Ye’s vulgar references to his wife’s buttocks could also be used as evidence to support a claim of hostile work environment. Ye is alleged to have said, “we really need this shoe to be done because all I think about is Kim’s ass and this shoe.” 

Similar cases have held that discussions or comments about women’s intimate body parts can be evidence of sexual harassment. For example, in Dias, the harasser “engaged in ongoing sexual harassment of women employees” that included “comments on the breasts, buttocks, and physical appearance of individual women.” Dias v. Sky Chefs, Inc., 919 F.2d 1370, 1373 (9th Cir. 1990). The court found that the vulgar comments about women’s bodies was sufficient to demonstrate a hostile work environment based on sex.

Similar to the allegations against Ye and Adidas, in Yamaguchi, the harasser made sexually explicit comments about his own wife’s intimate body parts and made comments about the victim such as commenting on her buttocks, stating “Cheryl has a nice ass.” Yamaguchi v. US Dept. of the Air Force, 109 F.3d 1475, 1478 (9th Cir. 1997). Again, in Yamaguchi, the court found that these types of comments were enough to establish a claim for sexual harassment. 

Given these cases and the similar allegations being brought against Ye, it is possible that these employees could prove a case of sexual harassment. 

Can the use of gender-based epithet in a song be enough to bring a claim of sexual harassment?

One of the allegations by the former Yeezy employees is that Ye played the song “I Love It” at the office with the chorus line “You’re such a fuckin’ ho, I love it.” But is this enough to demonstrate sexual harassment? Remember, that “[c]asual, isolated or trivial manifestations of a discriminator environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Glasgow, 103 Wn.2d at 407.

It is hard to believe that without more, simply playing of this song in the workplace alone creates a hostile work environment base on sex, or could be used as evidence of sexual harassment. How did Ye act while the song was playing? Did he make eye contact with anyone or point to anyone while it was playing? 

However, setting aside the use of the song, the use of gender-based epithets like “bitch”, “cun”t, “slut”, or “ho” (as is alleged here) to refer to women has repeatedly been used to show a hostile work environment based on sex. Courts typically find these insults or “swear words” different because they have a connotation of animus towards women. 

As observed in Baldwin, the terms “bitch” and “slut” are “more degrading to women than to men.” Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1302 (11th Cir. 2007). The original definition of the term “bitch” is “the female of the dog.” Webster’s Third New International Dictionary 222 (2002). The term’s secondary meanings are likewise gender-specific: “a lewd or immoral woman” or “a malicious, spiteful, and domineering woman.” Id. 

For example, in Hacienda Hotel, sexual harassment was found where, in part, a female supervisor called her female employees “dog[s]” and “whore[s].” EEOC v. Hacienda Hotel, 881 F.2d 1504,1508 (9th Cir. 1989).

In another case that was affirmed by the U.S. Supreme Court, a court found that the phrase “get rid of that bitch” uttered by a supervisor to be one piece of evidence among many, to be derogatory and hostile towards women and evidence of gender discrimination. Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002).

In Zabkowicz, the court found that an employee was harassed because she was a female on the basis that “the sexually offensive conduct and language used would have been almost irrelevant and would have failed entirely in its crude purpose had the plaintiff been a man.” Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784 (E.D. Wis. 1984). In this case, the employee was referred to as “slut,” “bitch,” and “fucking cunt,” among other statements and acts. Id. Clearly, these words carry with them a specific derogatory definition that is specifically directed at women, and would support a case of hostile work environment.

In short, if Ye was found to have referred to women as “hos”, “sluts”, “bitches” or other gender-based epithets alleged, I think it would be clear evidence of sexual harassment. However, simply playing a profane or sexual song like “I Love It” with gender-based epithets like “ho” may not be enough to prove a claim of sexual harassment. 

Were Ye’s alleged comments and behaviors unwelcome?

One of the most important elements of a sexual harassment claim is whether or not the gender-based treatment was unwelcome or unwanted. 

“Unwelcome” is both objective and subjective. First. Plaintiffs in these cases must show by their conduct that this harassment was unwelcome, See Nichols, 256 F.3d at 872, citing Meritor, 477 U.S. at 68, 106 S.Ct. 2399; see also Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cr. 1995). If a claim were brought against Ye, Adidas, or Yeezy, any employee would have to prove by their behavior, that Ye’s alleged treatment that they endured was “unwelcome”. Moving away physically or demonstrating outwardly that the conduct is unwanted are examples of how someone can demonstrate unwelcomeness

From what was shared and alleged in Rolling Stone, it appears, that at least to some women, that the treatment was unwelcome based on their behavior. For example, one of the employees is quoted saying “…I know that a lot of women who were in that room felt intimidated and felt bullied[.]” Moreover, from what has been alleged, it appears that women also outwardly demonstrated the unwelcomeness of Ye’s alleged actions. For example, a senior employee details sitting in a room with a female Adidas talent recruiter and who was holding back tears as she was being screamed at over the phone by Ye. Given these women’s outward expressions of unwelcomeness, it could be shown that Ye’s alleged conduct was unwelcome. 

Additionally, unwelcomeness can be viewed as objectively offensive, and that no reasonable person would have viewed it as appropriate in the workplace. The objective test of the severity of the harassment should be judged from the perspective of a reasonable woman in the Plaintiff’s position considering all of the circumstances. Harris v. Forklift Systems, Inc., 510 U.S. at 23. This requires “careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale, 523 U.S. at 81-82, 118 S.Ct. 998 (the “real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed”).

For this allege conduct to be sexual harassment, they would need to prove that the treatment that they received was “unwanted” or “unwelcome”.

Are the alleged actions by Ye imputable to the employer, such as Yeezy or Adidas?

Additionally, after notice to the employer that a victim was being sexually harassed, employers have a duty to express strong and immediate disapproval of harassment, reasonably calculated to stop the harassment and prevent its future occurrence, without detriment to the victim. E.E.O.C. v. Hacienda Hotel Id;, 881 F.2d 1504, 1515-16 (9th Cir. 1989); Intlekofer v. Turnage, 973 F.2d 773, 780 11 n. 9 (9th Cir. 1992). The failure to act after notice of a hostile environment means the employer is liable. “If 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach.” Perry v. Costco Wholesale, 123 Wash. App. 783, 793, 98 P.3d 1264, 1268 (2004).

The employees in their open letter, and the Rolling Stone article seem to suggest and allege that executives at Adidas knew about Ye’s behavior but did nothing. If proven, this could be a way to sue “deep pockets” like Adidas for Ye’s sexual harassment.

“The open letter about West’s workplace history claims that leaders from Adidas ‘continued to tolerate his difficult behavior.’” Moreover, the employees allege that  “the board members and the executive team turned their moral compass off by ignoring both Kanye’s inflammatory public behavior and the Yeezy team’s complaints regarding troubling partner dynamics.” These employees state that Ye’s behavior was entirely ignored by Adidas: “It was turning a blind eye”.

Given both Ye’s alleged participation in sexual harassment, as well as Adidas’ alleged knowledge and failure to do anything, both companies could be held responsible for Ye’s alleged sexual harassment.

What if it is just a male dominated industry, does an employee just have to deal with it?

In the Rolling Stone article, one Yeezy employee states,“[t]his is gonna sound so bad, but my first thought wasn’t like, ‘Oh, that’s f*cking weird,’ because we’re in it — we’re in this cult[.]” The staffer continued, “[m]aybe this is me being a female in a men-dominated industry.” Essentially, it appears that the former employee was saying, “I wasn’t too affected, because I just accept being a woman in a male-dominated industry, which includes sexual behavior by males in power.”

So if a woman is in a male-dominated industry, does she just have to “deal with it” the sexually-charged behavior by co-workers, managers, or owners? The answer is generally no.

Courts like in Williams have specifically held that women do not have to deal with sexual harassment even if they choose to work in the male-dominated trades. See Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir.1999) (“We do not believe that a woman who chooses to work in the male-dominated trades relinquishes her right to be free from sexual harassment.”); see also O’Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001) (citing Williams and rejecting the argument that “we must evaluate [plaintiff’s] claim of gender discrimination in the context of a blue collar environment where crude language is commonly used …”); see also Reeves v. CH Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010) (“Title VII does not offer boorish employers a free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate profanity as well.”)

In short, no, women in male-dominated professions do not need to put up with this type of behaviors.

Sexual harassment like in the cases discussed above is illegal in the workplace. If you are experiencing this type of behavior or have evidence that something like this is happening in your workplace, you should speak with an experienced sexual harassment attorney immediately.

Colin McHugh is an experienced sexual harassment attorney in Washington and Oregon and has represented survivors of sex discrimination and other employment cases, against high-profile employers including large corporations and governmental entities. For more information, go to his bio here.