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Sexually Explicit and Violent Music Blared Throughout the Workplace May Constitute a Hostile Work Environment Based on Sex

6/29/23

By: Christopher J. Fleissner and Daniel Parker Jett

The Ninth Circuit recently ruled that an employer’s conduct can discriminate based on sex even if that conduct equally offends both men and women, and even if it does not target any particular employee or group of employees. The Ninth Circuit Court of Appeals recently applied this principle to “auditory offenses” in the workplace.

In Sharp v. S&S Activewear, LLC, the panel 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.”

The panel concluded that the lower court erred in dismissing, for failure to state a claim, a Title VII sexual harassment claim based on this conduct. The panel instructed the District Court to reconsider the former employees’ claims in light of two principles: (1) “harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim,” and (2) the offensiveness of the music to multiple genders does not necessarily bar a Title VII violation.

The problem began when the employer permitted its managers and employees to “routinely play ‘sexually graphic, violently misogynistic’ music” throughout its warehouse. The songs’ content denigrated women and used offensive terms. Some of the songs “contained ‘very offensive’ lyrics that ‘glorifie[d] prostitution” and “described extreme violence against women.”

“Blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape.” It allegedly “served as a catalyst for abusive conduct by male employees,” who “frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos.”

The employer defended the music as “motivational” and was unreceptive to complaints. Thus, the employees were “forced to tolerate the music and the toxic environment as a condition of continued employment.”

The panel rejected the lower court’s reasoning that, because both men and women were offended by the work environment, the former employees could not sustain a Title VII claim. The panel stated, “More than offhand foul comments, the music at S&S allegedly infused the workplace with sexually demeaning and violent language, which may support a Title VII claim even if it offended men as well as women.” “[E]ven 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.”

The opinion adopts reasoning from other federal courts finding “repeated and prolonged exposure” to “sexually foul” music filled with sexist slurs broadcast throughout the workplace to be a form of actionable harassment. The panel also rejected the employer’s “equal opportunity harasser” defense, and affirmed that male and female plaintiffs can coexist in the same Title VII action.

The lesson to be learned is that Employers must recognize and curb the risk of allowing sexually offensive music to pervade the workplace. Otherwise, Companies who fail to heed this warning may face charges of sex and/or other forms of alleged workplace discrimination.

For more information, please contact Chris Fleissner (Chris.Fleissner@fmglaw.com), Daniel Jett (djett@fmglaw.com), or your local FMG attorney.