If You’re Discriminated Against: A Gude for Musicians (Part III)

Local 802 Legal Corner

Volume CIII, No. 11November, 2003

Harvey S. Mars, Esq.
Local 802 Counsel
Leibowitz & Mars LLP

Click here for Part I and Part II

There are several published decisions involving employment discrimination claims brought by professional musicians which serve as interesting illustrations of the principles of employment law set forth in my last article. In this article I will review these decisions and elaborate on what a professional musician can learn from them. Hopefully, they will help you to either avoid or combat any employment discrimination you may encounter on the job.


The first decision involves a freelance violinist who claimed that the Metropolitan Opera had discriminated against him on behalf of his age when it denied him one of two vacancies available in the violin section. Hart v. Metropolitan Opera Association, Inc., 1993 WL 277200 (S.D.N.Y. 1993).

In this case, the court dismissed the plaintiff’s discrimination suit because he had failed to establish a prima facie case. The plaintiff had actually refused to audition for the vacancy, even though he was given the opportunity to do so. His refusal to audition rendered him unqualified for the position, the first element of a prima facie case.

Moral of this story: if you believe that you are entitled to a position, take advantage of every means available to attain it, including participation in an audition. The outcome of the case might have been different if the plaintiff had presented evidence that the Met had refused to allow him to audition.


The next noteworthy case involved a former symphony employee who claimed he had been sexually harassed by the symphony president during his term of employment. Wolf v. Northwest Indiana Symphony Society, 250 F.3d 1136 (7th Cir. 2001).

This action was dismissed by the trial court and the dismissal was affirmed by the appellate court. The problem with this plaintiff’s discrimination action is that he had failed to complain about the president’s harassing behavior during the term of his employment. Furthermore, the plaintiff had not been terminated – he had resigned. And at the time of his resignation he claimed that he and the symphony president were good friends and that she had been “the best boss he ever had.” It was only after a significant amount of time had elapsed after his resignation that the plaintiff complained that she had made sexual advances towards him while he had worked with her.

The moral of this story is that if you encounter sexual harassment on the job, complain about it immediately. If you wait too long, your credibility may be irreparably damaged and your suit dismissed.


Finally, a decision which I referred to in my first article warrants a second look. This was Lerohl v. Friends of Minnesota Sinfonia, 322 F.3d 486 (8th Cir. 2003).

This action is interesting because in it the plaintiff does not seek damages for employment discrimination. Instead, she asserts that her termination from the Minnesota Sinfonia was in retaliation for her prior complaints that the conductor had sexually harassed her.

A retaliation claim under Title VII provides a basis for relief totally independent from the discrimination which was originally complained of and may be asserted either in conjunction with or separately from an employment discrimination cause of action.

Often these cases are easier to succeed on because the plaintiff does not need to provide that employment discrimination actually occurred. Even if the original claim was bogus, a retaliatory action by the employer which was a direct result of the claim constitutes an independent basis for recovery.

However, this suit was ultimately dismissed because the plaintiff was deemed to be an independent contractor, not an employee covered by Title VII. (Remember, being classified as an “employee” is important. See my column in the July/August Allegro.)

This concludes my review of employment discrimination law. My next article will review copyright infringement and the concept of fair use for musical publications.

Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.