Employers can be liable for sexual harassment under federal law (Title VII of the 1964 Civil Rights Act) if “sexually explicit” or “aggressive” music is played in the workplace, the Ninth Circuit recently ruled in Sharp v S&S Activewear, L.L.C, 9th Cir. (June 2023).
The Ninth Circuit’s ruling directly applies to employers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. However, given the federal Equal Employment Opportunity Commission’s amici brief in support of the plaintiffs’ position and the Court’s reliance on opinions from the Second, Fourth, and Sixth Circuits that held that sights and sounds that pervade the work environment may constitute sex discrimination, it is likely other circuits may follow suit.
Eight former employees of apparel manufacturer S&S Activewear (seven females and one male) brought sexual harassment claims against S&S alleging that the company permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music at the worksite. The music was played on speakers throughout the warehouse and accompanied by “abusive conduct” by male employees (e.g. sexually graphic gestures, obscenities, and sexually explicit remarks). Some employees complained “almost daily” for nearly two years before litigation ensued.
S&S moved to dismiss the complaint for failure to state a claim, which the district court granted, dismissing the complaint without leave to amend. The lower court reasoned that since the music offended both women and men and was audible throughout the warehouse, it could not serve as the basis for a sexual harassment claim. In the district court’s estimation, the music’s offensiveness to both men and women was a “fatal flaw.” Plaintiffs appealed to the Ninth Circuit.
The Ninth Circuit Finds the Lower Court’s Decision Out of Tune
The Ninth Circuit disagreed for two reasons:
- Harassment, whether aural or visual, does not need to be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim.
- That the challenged conduct is offensive to multiple genders will not bar a Title VII claim.
Accordingly, the Court held that “music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex.”
It further noted that “repeated and prolonged exposure to sexually foul and abusive music . . . falls within a broader category of actionable, auditory harassment that can pollute a workplace and violate Title VII.”
Time to Update Your Playlist?
Under Title VII generally, employers must (i) ensure the workplace is free from sexual harassment and (ii) take steps to stop sexually hostile or abusive conduct. Now, to remain compliant with Title VII, employers must ensure that any music being played at worksites is appropriate and inoffensive, or risk legitimate claims of sexual harassment. Furthermore, while this ruling only addresses harassment based on sex, it is reasonable to believe that its logic could extend to other protected classes (e.g. race, color, religion, national origin, disability, or age).
This case also underscores the importance of maintaining appropriate mechanisms to receive and investigate employee complaints of harassment. Two years of near daily complaints should not fall on deaf ears. Instead, it is a strong signal to reassess what’s happening in the workplace. And, that something or someone is an equal opportunity offender does not excuse it – “it was offensive to everyone” is not be a sufficient defense.
While we might not all favorite the same playlists, it’s important to recognize basic tenets of decency and R-E-S-P-E-C-T. A good litmus test: if the music in the workplace is leading some employees to make sexually graphic and violent gestures, it’s time to the change that tune.