Can an employer be liable for workplace harassment resulting from music with sexually graphic lyrics when both women and men find the music offensive? Last week, the Ninth Circuit Court of Appeals answered that question with a resounding “yes.” Sharp v. S&S Activewear, L.L.C., No. 21-17138 (9th Cir. June 7, 2023). The court had little trouble reversing the trial court’s decision that because employees of both sexes found the music offensive the plaintiffs’ harassment claim was not viable.
Eight former employees of S&S Activewear – seven women and one man — alleged that the company permitted its managers and employees to regularly play music with “sexually graphic” and “violently misogynistic” lyrics in its warehouse. According to the complaint, the music demeaned women and described violence against women. The music was allegedly “blasted” from speakers throughout the warehouse and was omnipresent throughout the facility as it was played through commercial-grade speakers to the point that employees found it difficult to avoid the music.
The plaintiffs further alleged that the music was a catalyst for abusive behavior by male employees, such as mimicking of sexually graphic gestures, yelling obscenities, making sexually explicit comments, and sharing pornographic videos. Male and female employees complained, however, company management responded that the music was motivational. The music continued for approximately two years and ceased only when plaintiffs filed suit.
In seeking dismissal, the company argued that the allegations could not support a viable harassment claim under Title VII because men and women were offended by the lyrics and all employees, without regard to sex, were exposed to the lyrics. At the motion to dismiss stage, the plaintiffs’ allegations are taken as true to assess whether the plaintiffs plausibly stated a claim.
The trial court was convinced by S&S’s argument — because the music was offensive to women and men and was heard by all, it could not support a viable sex-based hostile work environment claim.
The plaintiffs appealed and the Ninth Circuit vacated the district court’s dismissal.
Title VII prohibits employers from discriminating against employees based on sex. The court addressed the specific question of “whether music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive work environment and thus constitute discrimination because of sex.” And the court answered in the affirmative. The court remanded the case to the district court to reconsider the plaintiffs’ allegations while considering that harassment need not be targeted directly at a specific person in order to support a Title VII claim and that a hostile work environment claim is not barred merely because the underlying conduct is offensive to both sexes.
The court explained that, “harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim.” In addition, “challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim.” The decision iterates the principle that there is no “equal opportunity harasser” defense.
The EEOC supported the plaintiffs’ appeal and argued that “exposing employees to misogynistic and sexually graphic music can be discrimination because of sex, even where the employer exposes both women and men to the material and even though both women and men find the material offensive.”
The Ninth Circuit covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington. For employers in Maryland, North Carolina, South Carolina, Virginia, West Virginia, the Fourth Circuit Court of Appeals held in Ocheltree v. Scollon Productions, Inc., that male employees’ “sex-laden and sexist talk and conduct” constituted sexual harassment of an employer’s lone female employee, even though the language and behavior “could have been heard or seen by anyone present in the shop and was equally offensive to some of the men.” 335 F.3d 325, 332.
The case provides a good, if obvious, reminder that certain conduct should not be permitted in the workplace. Music that is enjoyed by many can contain lyrics that are offensive to employees, even to the point of creating a hostile work environment.