Yesterday, our employment discrimination attorney discussed whether offensive music could create a racially or sexually hostile work environment based on the recent United States Court of Appeals for the Ninth Circuit holding in Sharp v. S&S Activewear, L.L.C., No. 21-17138, 2023 WL 3857491, (9th Cir. June 7, 2023). (You can read that blog here). Today, we focus on the employer’s very interesting defense, which was essentially, “since we equally offended both men and women, our conduct could not be discriminatory based on sex, i.e., both men and women were treated the same.”
Now, Title VII of the Civil Rights Act of 1964 may not protect employees from a complete a-hole of boss that equally makes all works perform degrading tasks or MFs all employees or calls them idiots or moron regardless of race/color, gender, national origin, religion, sexual orientation, or gender identity. However, is it a legitimate defense if a boss equally talks about both genders’ genitalia; the supervisor makes inappropriate sexual jokes or shows porn videos in front of both men and women; or the owner of the company makes racial comments about all races? Can an employer avoid liability for race discrimination because the manager also calls all white employees “cracker” or “whitey”, while referring to Black employees as “blacky,” “chocolate,” or God forbid the n-word?
Sounds ridiculous, right?
In Sharp, eight employees (seven women and one man) filed a lawsuit against their employer, alleging gender discrimination and a sexually hostile work environment. The employees claimed that S&S Activewear, an apparel manufacturing company, permitted the playing of music with sexually explicit and violently misogynistic content throughout their 700,000-square-foot warehouse in Reno, Nevada. The sexually offensive music was played loudly through strategically placed speakers, making it difficult for employees to escape its reach. Some employees even placed speakers on forklifts, further increasing exposure to the music. Despite receiving frequent complaints, the employer defended the music as motivational and allowed it to continue for nearly two years before stopping only when faced with the threat of litigation. Moreover, the employer argued that since the music equally offended both men and women – as evidenced by the fact that a male employee was also suing – there could not be sex-based disparate treatment.
This argument was first made in the United States District Court for the District of Nevada to the Hon. Judge Miranda Du, an appointee of President Barack Obama, who grants summary judgment at a low rate for federal judges (45 percent). And … she bought the argument! Judge Du dismissed the employees’ music-based claims Judge Du dismissal was based on her “reasoning that the music’s offensiveness to both men and women and audibility throughout the warehouse nullified any discriminatory potential.” Id. at *2. Given the Judge’s political background, prior rulings, and extreme facts, this decision likely came as a surprise.
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Can employers escape liability by equally harassing all genders and races?
No (as long as a court properly applies the law. In the landmark decision Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), the United States Supreme Court held that Title VII’s prohibition of discrimination based on sex protects both men and women. The Supreme Court recognized that sexually charged conduct can be offensive to individuals of different genders in distinct and significant ways. While the impact of certain words or actions may vary depending on the gender of the recipient, it does not excuse or diminish the harmful nature of such conduct. Therefore, male employees have the right to bring a claim for a hostile work environment alongside their female colleagues.
In Sharp, the United States Court of Appeals for the Ninth Circuit reversed Judge Du, holding:
S&S’s arguments to the contrary hinge on an “equal opportunity harasser” defense that we simply do not countenance. An employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace. Crediting such an approach would leave a gaping hole in Title VII’s coverage. And, again, targeting a specific person is not a prerequisite for a viable claim under Title VII. “[O]ur case law is clear that the fact that an individual ‘consistently abused men and women alike’ provides no defense to an accusation of sexual harassment.” McGinest, 360 F.3d at 1118 (quoting Steiner, 25 F.3d at 1463). In Steiner v. Showboat Operating Co., we reviewed a casino’s attempted invocation of this defense and concluded, “even if [the supervisor] used sexual epithets equal in intensity and in an equally degrading manner against male employees, he cannot thereby ‘cure’ his conduct toward women.” 25 F.3d at 1464. And, importantly, we “d[id] not rule out the possibility that both men and women working at Showboat have viable claims against [the supervisor] for sexual harassment.” Id.
It follows that an employer cannot evade liability by cultivating a workplace that is broadly hostile and offensive. As the Eleventh Circuit explained in Reeves, “Title VII does not offer boorish employers a free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate profanity as well.” 594 F.3d at 810. Concrete incidents of sex discrimination should not drown in a sea of incivility.
Id. at *6.
And this makes sense. Had the decision gone the other way, it would have opened up a whole new playbook for HR representatives – complaints about naked pictures of women being posted, well then, let’s make sure that there are dick pics displayed as well. Can you imagine the HR training sessions with a powering point telling managers that for every time you say something about a woman’s butt, boobs, or vagina, you also have to make a comment about a male employee’s ass or package. Insanity! Indeed, the Ninth Circuit Court of Appeals called any such ruling an “absurd interpretation.”
Although this was just a sexual harassment case, the Ninth Circuit Court of Appeals made sure that the lower courts understood that this reasoning applied to race discrimination as well, holding:
This same principle holds true in the context of race discrimination: We have held that a white coworker’s “use of racially charged words to goad both black and white employees makes his conduct more outrageous, not less so.” McGinest, 360 F.3d at 1118. And, in Swinton v. Potomac Corp., we emphasized that the Black plaintiff was not “required to prove that white employees were not subject to similar harassment.” 270 F.3d at 807. After all, allowing an employer to “escape liability because it equally harassed whites and blacks [or men and women] would give new meaning to equal opportunity.” Id.
Id. at *6.
Thankfully common sense prevailed.
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Do I have a good claim for sexually hostile work environment against my employer?
Every situation and potential case is different and an evaluation will need to be done based on the specific facts of your workplace and what you have been forced to endure. Instead of searching the worldwide web for general answers, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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