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Many workplaces allow their employees to listen to music or radio on site. But what if employees choose to blast “sexually graphic” and “violently misogynistic” songs throughout a warehouse? Does it matter whether the workforce in the warehouse is only men or only women? In Sharp, et al., v. S&S Activewear, Inc., the Ninth Circuit weighed in on those facts and looked at whether music that offends both genders could be sex discrimination and support a Title VII hostile work environment claim.

S&S Music Factory

S&S Activewear had a 700,000-square-foot warehouse in Reno, Nevada, at which workers played music from commercial strength speakers placed all over the warehouse. The music was extremely loud and “nearly impossible to escape.” The choice of music was “particularly demeaning to women,” but some male employees were also bothered by it. Workers made complaints on a daily basis, but management defended the music as “motivational” and allowed it to continue for over two years. Workers also alleged that the music encouraged certain employees to engage in sexually graphic gestures and yelling obscenities.

Eight employees (seven women and one man) filed suit against S&S claiming that the music and other conduct created a sexually hostile work environment that violated Title VII. At the district court level, S&S moved to dismiss the complaint. The court granted the motion, finding that because the music was played throughout the warehouse, the plaintiffs could not show that any harassment was directly targeted to them. The lower court also stated that because the music was offensive to both men and women workers, they could not state a claim of sex discrimination. Plaintiffs appealed to the Ninth Circuit.

The Saturated Workplace and the “Equal Opportunity Harasser”

The Ninth Circuit disagreed with the district court on both points. First, despite the fact that everyone in the warehouse was exposed to the songs, the Ninth Circuit held that “even if audible to all, lyrics loaded with sexist slurs” expose the workers to uniquely disadvantageous terms or conditions of employment. The court noted several decisions from sister circuits that had looked at music as a form of workplace harassment. As noted by the Eleventh Circuit in Reeves v. C.H. Robinson Worldwide, Inc.,

“words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff.” 

Ultimately, the Ninth Circuit held that “sexually graphic, violently misogynistic” music can be a form of harassment that could support a Title VII claim.

Second, the Ninth Circuit made short work of the lower court’s argument that the “coexistence of male and female plaintiffs [in the same action] dooms a hostile work environment claim.” The court rejected the “equal opportunity harasser defense,” stating that an employer should not tolerate harassing conduct simply because both men and women have to suffer it. Specifically, the Ninth Circuit said that “an employer cannot evade liability by cultivating a workplace that is broadly hostile and offensive.” The court’s conclusion: “Male and female plaintiffs can coexist in the same Title VII action.” 

So, No Music in the Workplace?

It is important to note that it wasn’t that any music was being played in the warehouse, it was music that the court characterized as denigrating to women, sexually graphic and even violently suggestive. Good rule of thumb: NEVER play that music in a workplace. But this decision also points out the danger of allowing workers to engage in potentially harmful sexual banter, posters or graffiti. It doesn’t matter that the activity or displays are not specifically directed to a certain future plaintiff. According to this court, the environment itself can be so toxic that it creates a valid Title VII claim. Training should remind workers that sexually explicit talk has no place at work.