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In a recent decision, the 9th U.S. Circuit Court of Appeals held that continuously playing sexually derogatory and violent music in the workplace can be considered a form of unlawful sexual harassment, even if multiple genders are offended. The ruling came in the case of Sharp, et al. v. S&S Activewear, LLC, where former employees of S&S Activewear in Nevada alleged that the company allowed managers and employees to routinely play explicit and misogynistic music in their Reno warehouse, creating a sexually hostile work environment.
According to court documents, despite receiving numerous complaints about the offensive music on an almost daily basis, management defended it as motivational and allowed it to continue for nearly two years. The plaintiffs filed a lawsuit against S&S, claiming that the constant playing of sexually graphic music violated Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace.
Initially, a federal district court dismissed the suit, stating that the complaint failed to allege that the music specifically targeted a particular employee or group of employees. However, the 9th Circuit vacated the ruling and revived the lawsuit, instructing the district court to reconsider the complaint based on two key principles. First, harassment does not have to be directly targeted at a specific plaintiff to create a hostile work environment under Title VII. Second, the offensiveness of the conduct to multiple genders does not automatically bar a Title VII claim.
The 9th Circuit’s decision serves as a warning to employers that practices such as allowing sexually or racially offensive music to permeate the workplace can transform it into a hostile environment and potentially lead to legal consequences. This ruling aligns with similar decisions by other federal appeals courts, including the 2nd, 4th, 6th, and 11th Circuits, which have recognized that offensive sights and sounds in the workplace can constitute sex discrimination under Title VII.
The case involving S&S Activewear is not the first instance of a “music-as-harassment” claim. In 2022, a former Tesla employee filed a similar lawsuit, alleging that the company ignored the playing of obscene and misogynistic music at one of its worksites in Nevada. While that particular case entered arbitration shortly after being filed, it highlights the issue of offensive music in the workplace.
It is important for employers to be aware that they may be held liable for harassment if they were aware of or should have known about the offensive conduct and failed to take prompt and appropriate action. In the cases mentioned, the plaintiffs repeatedly complained about the derogatory music, but management consistently failed to respond to their concerns.
The ruling from the 9th Circuit also emphasizes that these principles apply to hostile work environment claims based on race discrimination. If racial hostility pervades a workplace, an employee may establish a violation of Title VII, even if the hostility was not directly targeted at them or if a worker of a different race was also targeted.
Ultimately, this decision serves as a reminder to employers that they have a responsibility to create a work environment free from harassment, including offensive music. Promptly addressing and taking appropriate action when such complaints arise is essential to fostering a respectful and inclusive workplace for all employees.
