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.Continue Reading When Harmony Becomes Hostile: The Ninth Circuit Notes that Offensive Music in the Workplace Can Constitute Harassment

As detailed in prior posts, in January, the Illinois Supreme Court held that a plaintiff need not plead an actual injury beyond a per se statutory violation to state a claim for statutory liquidated damages or injunctive relief under the Illinois Biometric Information Privacy Act (BIPA). While recent decisions applying BIPA have been largely Illinois-based, the Ninth Circuit recently applied BIPA in Patel v. Facebook to affirm a lower court’s ruling that plaintiffs in the ongoing Facebook BIPA class action alleged a concrete injury-in-fact to confer Article III standing and that the class was properly certified.

The Ninth Circuit is the first federal circuit court to conclude that a plaintiff alleging a BIPA violation has standing for purposes of Article III of the US Constitution. The ruling makes it easier for plaintiffs to certify BIPA class actions, within and outside of Illinois. 
Continue Reading The Ninth Circuit Clears The Way For BIPA Class Actions

On July 22, 2019, a three-judge panel for the Ninth Circuit withdrew its holding that Dynamex Operations West, Inc. v. Superior Court—the landmark California Supreme Court decision that makes it harder for companies to rely on independent contractors—applies retroactively. The panel held instead that the question should be decided by the state’s highest court.
Continue Reading Scratch That: The ABC Test Might Not Apply Retroactively