The musician Bob Marley once said “one good thing about music, when it hits you, you feel no pain”. At least eight former employees of S&S Activewear would disagree. S&S operated a 700,000 square foot warehouse in Reno, Nevada where many of its employees worked. The company permitted managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout the warehouse. According to the male and female employees who sued, the song lyrics used offensive terms that denigrated women. Songs like “Blowjob Betty” by Too $hort contained “very offensive” lyrics that “glorifie[d] prostitution.” Likewise, “Stan” by Eminem described extreme violence against women.
The music overpowered operational background noise and was impossible to escape because it blasted from commercial-strength speakers placed throughout the warehouse. Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict—let alone evade—the music’s reach. The music allegedly served as a catalyst for some male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos. The music was particularly demeaning toward women, who comprised roughly half of the warehouse’s workforce, but some male employees also took offense. Despite “almost daily” complaints, S&S management defended the music as motivational and allowed it to be played for nearly two years, until litigation loomed.
The former employees filed suit, alleging that the music and related conduct created a hostile work environment in violation of Title VII. The district court granted S&S’s motion to dismiss and denied leave to amend the music claim. The district court reasoned that because the music was offensive to multiple genders and no one individual or group was targeted, there was no discrimination because of sex. The employees appealed to the Ninth Circuit.
An employee who brings a hostile work environment claim must show that the employer discriminated because of an employee’s membership in a protected group. The offensive conduct must be “sufficiently severe or pervasive to alter the conditions of employment.” There is no requirement that the harassing conduct only target an individual; nor does one protected class need to be treated differently than another to establish a Title VII hostile work environment violation.
Other U.S. Circuit courts have decided that a workplace saturated with sexually derogatory content can constitute harassment “because of sex” and that lyrics loaded with sexist slurs expose female employees to uniquely “disadvantageous terms or conditions of employment.” According to those precedents, the Ninth Circuit determined that the music at issue in this case was actionable conduct under Title VII.
The Ninth Circuit also disagreed with S&S that no harassment because of sex had occurred since the music was offensive to both men and women. An employer cannot evade liability for a gender harassment claim by cultivating a workplace that is broadly hostile and offensive to both men and women. The Ninth Circuit remanded the case back to the district court for further consideration.
Sharp v. S&S Activewear, L.L.C. (9th Cir. 2023) 69 F.4th 974.
Note: This case illustrates two important maxims of discrimination and harassment law. First, the Ninth Circuit has joined other Circuits to find that music or sound that pervades a workplace can create a hostile work environment under Title VII. Second, an employer has no “equal opportunity harasser” defense. The fact that employees of different protected classifications are impacted does not provide a defense to a Title VII claim.