Management should put some thought into the content of music transmitted over workspaces.  In Sharp v. S&S Activewear, L.L.C. (June 7, 2023), the federal appeals court for the western states drew the line between at least tolerably appropriate and unlawfully offensive.

Embodied in the U.S. Civil Rights Act of 1964 (also known as “Title VII”) and California’s Fair Employment and Housing Act, sexual harassment is a form of unlawful workplace discrimination, targeting individuals due to gender. Management and co-workers are all subject to such prohibition. Unwelcome and inappropriate conduct is illegal whether aimed at men, women, or individuals of the opposite or same sex. Examples include sexual jokes or innuendos, displaying images of a sexual nature, hindering another’s movements, or demanding inappropriate physical contact.  Employers are now on notice that music broadcast over work areas can also create such unlawful conditions.

Stephanie Sharp and seven others – including one man – alleged employer S&S permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its 700,000-square-foot warehouse in Reno, Nevada. According to Sharp, the songs’ content denigrated women and used offensive terms like “hos” and “bitches.” Songs like “Blowjob Betty” by Too $hort contained “very offensive” lyrics that “glorifie[d] prostitution.” Likewise, “Stan” by Eminem described extreme violence against women, detailing a pregnant woman being stuffed into a car trunk and driven into water to be drowned.

S&S doubled down.  While not denying the music was offensive, the company contended it did not constitute an illegally hostile environment because it was offensive to both women and men, therefore no particular gender was targeted.  God bless the lawyers.

Worse, the trial judge agreed with S&S and dismissed the suit.  The message: if an employer is an “equal opportunity harasser,” Title VII’s prohibitions will not apply.

The Ninth Circuit disagreed.  The court observed that a workplace saturated with sexually derogatory content can constitute harassment “because of sex” and that it has consistently validated Title VII claims challenging a workplace “polluted with insult and intimidation.”

The court found that rather than absolving an employer for conditions that offended both sexes, the warehouse-wide playing of music better reflected that music’s “invidious pervasiveness.” “Because S&S’s management was unreceptive to complaints, Sharp was forced to tolerate the music and the toxic environment as a condition of continued employment. And, even if the ubiquitous music was not (and need not have been) targeted toward any particular woman, female employees allegedly experienced the content in a unique and especially offensive way. Whether sung, shouted, or whispered, blasted over speakers or relayed face-to-face, sexist epithets can offend and may transform a workplace into a hostile environment that violates Title VII.”

Moreover, “Title VII’s prohibition of discrimination ‘because of … sex’ protects men as well as women … [H]arassing both men and women cannot “cure” bad conduct and “do[es] not rule out the possibility that both men and women … have viable claims against [their employer] for sexual harassment.”

Thus, an “employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace. Crediting such an approach would leave a gaping hole in Title VII’s coverage … that an individual ‘consistently abused men and women alike’ provides no defense to an accusation of sexual harassment.”

Take Away:

This employer had every opportunity to take the harassment complaints over this music seriously and, regardless of any manager’s possible affinity for the genre, to avoid a suit and potential liability by eliminating the claimed hostile workplace condition.  The decision is a lesson to all management to operate as the proactive solution to good faith concerns raised by their workforce, not as a dismissive part of the problem.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• EEOC Obtains $2 Million Settlement with McDonald’s Franchisees for Tolerating Sexual Harassment – Sexual Harassment is No Joke (February 10, 2023)
• Do Something – EEOC Sues Convenience Stores Owner for Condoning Sexual Harassment (March 4, 2022)
• Old Boy Kill-Joy- EEOC Sues Employer for Sexual Harassment and Retaliation (September 30, 2021)

Tim Bowles
June 16, 2023