Ninth Circuit: Sexually Graphic and Violent Music May Constitute Harassment in the Workplace

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APPLIES TO

All Employers with 15+ Employees in AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and the Northern Mariana Islands

EFFECTIVE

June 7, 2023

  

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Quick Look

  • “Sexually graphic, violently misogynistic” music played constantly and publicly throughout the workplace may constitute harassment under Title VII.
  • The offensiveness of conduct to multiple genders is not a bar to bringing a Title VII claim.

Discussion

In Sharp v. S&S Activewear LLC, the Ninth Circuit Court of Appeals looked at whether 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 under Title VII of the Civil Rights Act of 1964. The court stated that harassment does not have to be directly targeted at a particular person to give rise to a Title VII claim, and the conduct’s offensiveness to multiple genders is not a bar to bringing a Title VII claim.

There, an employer allegedly permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its large warehouse in Reno, Nevada. Employees claimed the music led to abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos. It is important to note that the Equal Employment Opportunity Commission (EEOC) filed a “friend of the court” brief on behalf of the employees supporting the notion that music may be the foundation for a harassment claim.

The court acknowledged that objectionable conduct is not “automatically discrimination because of sex merely because the words used have sexual content or connotations.” However, lyrics loaded with sexually degrading, gender-specific slurs expose female employees to uniquely “disadvantageous terms or conditions of employment.” Moreover, even sexually charged lyrics that are directed at a particular gender may simultaneously offend different genders in unique and meaningful ways. An employer cannot evade liability by cultivating a workplace that is broadly hostile and offensive.

Notably, the court expressly stated that it was not passing judgment on the appropriateness of music in the workplace generally, and it was not categorizing any particular musical genre as misogynistic. Ultimately, it did not make any specific determinations of the facts of the case itself as the ruling only addressed a procedural point on whether or not the case should be able to proceed.

Action Items

  1. Review both audio and visual content shared within the workplace, as well as associated behavior, to ensure employer policies against discrimination and harassment in the workplace are being followed.
  2. Have all personnel trained on appropriate behavior in the workplace.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase