Blame that tune: Music at work can be sexual harassment, court says

Is it possible for music played at work to constitute discrimination based on sex?

Yes, the U.S. Court of Appeals for the Ninth Circuit has ruled in a new decision.

Music that has “sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment,” the court said.

2 key points

Two key additional findings from the ruling:

• Harassment can give rise to a Title VII claim even if it is not targeted at a specific person.
• The fact that certain conduct offends multiple genders does not automatically bar Title VII liability.

For employers in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands), the decision raises the bar on how far employers must go to monitor the sounds heard by their employees at work.

The plaintiffs in the case are eight former employees – seven women and one man — of an apparel manufacturer called S&S Apparel. They all worked at a large S&S warehouse in Reno, Nevada.

They said S&S allowed managers and employees to play “sexually graphic” and “violently misogynistic” music throughout the warehouse on a routine basis.

“[T]he music overpowered operational background noise and was nearly impossible to escape,” according to the court’s ruling.

What’s the problem?

What exactly was the music that was offensive?

As examples, the plaintiffs said some songs used terms like “hos” and “bitches.” Others glorified prostitution and described extreme violence against women, they alleged.

These are not songs taken from underground mixtapes or created by little-known artists. At least some of the music at issue can fairly be characterized as mainstream – and certainly mainstream enough to garner radio play.

For example, one of the songs identified in the case – “Stan” by Eminem – was a hit in 12 countries and reached number 51 on the Billboard top 100. Eminem has performed at the Super Bowl halftime show and sold millions of albums.

A ‘catalyst’ for other problems?

The music allegedly acted as a “catalyst” for abusive conduct by male workers, who allegedly made sexually graphic gestures, made sexually explicit remarks, and openly shared pornographic videos.

Both male and female employees complained almost daily, the decision says, but S&S allegedly “defended the music as motivational.”

The plaintiffs sued, asserting that the music and the related conduct created a hostile work environment and thus resulted in a violation of Title VII.

A lower court granted a defense motion for dismissal, finding that there could be no unlawful sex discrimination because the music could be heard by everyone and was offensive to both men and women.

Appeals court revives suit

On appeal, a three-judge panel of the Ninth Circuit disagreed. It said the lower court pulled the trigger on dismissal too quickly.

It sent the case back to the lower court and told it to reconsider the allegations in light of two key principles.

First, it explained, harassment can violate Title VII even if it is not directed at a specific person. And second, a Title VII claim is not necessarily barred by the fact that the challenged conduct offends more than one gender.

Individual targeting is not needed, the court explained. Instead, it said, it is enough if hostile conduct “pollutes the victim’s workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.”

EEOC agrees

In making its decision, the court noted the EEOC’s position 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.”

According to the court’s ruling, at least four other circuits (Second, Fourth, Sixth, and Eleventh) have ruled that “sights and sounds that pervade the work environment may constitute sex discrimination under Title VII.”

Sexually charged conduct can simultaneously offend different genders, the court added. That means a male employee can bring a hostile environment claim alongside female employees.

“An employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace,” it said.

The lower court’s decision was reversed, and the case was remanded for further proceedings.

Key takeaway: Actively monitor music being played by employees in the workplace — and respond promptly to complaints that it is creating a hostile work environment.

Sharp v. S&S Activewear, No. 21-17138 (9th Cir. 6/7/23).