Last week, in Sharp v. S&S Activewear, L.L.C., No. 21-17138, 2023 WL 3857491, (9th Cir. June 7, 2023), the United States Court of Appeals for the Ninth Circuit addressed the offensive music issue as well as whether there is a violation of Title VII of the Civil Rights Act of 1964 when employers equally harass both men and women. (I have separately blogged on the subsequent part of this hold).
In Sharp, eight employees, seven of whom are women and one of whom is a man, sued their employer, S&S Activewear, an apparel manufacturing company for gender discrimination and creating a sexually hostile work environment. According to the employees, S&S allowed its managers and employees to routinely play music with sexually graphic and violently misogynistic content throughout their massive 700,000-square-foot warehouse in Reno, Nevada. The songs played in the warehouse denigrated women and included offensive terms such as “hos” and “bitches.” Examples of such songs included “Blowjob Betty” by Too $hort, which contained highly offensive lyrics that glorified prostitution, and “Stan” by Eminem, which described extreme violence against women, including the depiction of a pregnant woman being forced into a car trunk and drowned.
The music was blasted through commercial-strength speakers strategically placed throughout the warehouse, overpowering the normal operational background noise and making it nearly impossible for employees to escape its reach. In some instances, employees even placed speakers on forklifts and drove around the warehouse, further increasing the difficulty of avoiding the music.
Sharp alleges that the music served as a catalyst for abusive conduct by male employees. These employees frequently engaged in sexually explicit gestures, shouted obscenities, made sexually explicit comments, and openly shared pornographic videos. While the music specifically targeted women, who made up approximately half of the warehouse workforce, some male employees also found it offensive.
Despite receiving “almost daily” complaints from employees, S&S management defended the music, claiming it was motivational. They continued to allow the music to be played for nearly two years until the threat of litigation arose, prompting them to stop playing it.
What is considered a hostile work environment under Title VII?
To establish a claim of a hostile work environment, employees must demonstrate that their employer engaged in discrimination based on their membership in a protected group, as outlined in 42 U.S.C. § 2000e-2(a)(1). The offensive conduct must be of a nature that is “sufficiently severe or pervasive to alter the conditions of employment.” Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020). It is important to note that individual targeting is not a requirement for proving a violation of Title VII. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 687, (9th Cir. 2017). As the United States Court of Appeals for the Ninth Circuit held in Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463, (9th Cir. 1994), the presence of hostile conduct in the workplace can be sufficient to create an abusive working environment if it pollutes the victim’s workplace, making it more challenging for them to perform their job, take pride in their work, and desire to remain in their position.
Furthermore, it is crucial to consider the context in which the workplace conduct occurs. Courts must assess conduct cumulatively and in the specific context of the workplace, rather than evaluating isolated incidents in isolation. It is important to note that objectionable conduct does not automatically constitute discrimination based on sex simply because it contains sexual content or connotations. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). To that end, in Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the United States Supreme Court held that “simple teasing, offhand comments, and isolated incidents (unless extremely serious)” do not amount to discrimination. These boundaries prevent Title VII from becoming a general civility code for the workplace in the United States. Oncale, 523 U.S. at 81.
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Can I sue for sexually or racially offensive music played in the workplace?
Maybe. Certainly, if a song with a bad word is played once and while, courts will not likely be inclined to hold that a hostile work environment has been created. However, there seems to be this common perception that if a commercial artist records a song, it is okay to repeatedly play it out loud, sing along, or just use the same words as in the lyrics while at work. Our race discrimination lawyers have seen it so repeatedly that we have dubbed it the “Jay-Z” defense – “Well, Jay-Z said it is okay to say n*gg*er, so it must be okay now.” This happens way more often that you would believe.
Certainly, an employer would not be able to play a recorded loop of sexually or racially offensive words or statement through its speaker system. Why should the perception change just because someone added a beat to the background? In this regard, music should be considered on the same spectrum and sliding scale as videos. For example, playing a network TV that intimates or even discusses that characters engaged in sex acts likely would not create a hostile work environment, but playing porn definitely would. How about what lies between? Would playing Netflix’s Bridgerton, Sex Education, or How To Build A Sex Room that frequently present naked characters engaging in various sex acts without or in a very limited fashion showing the naughty bits and pieces? How about if the employer showed just a compilation of the sex scenes from these Hollywood produced TV shows without showing private parts? It would be hard to argue that that this would not be sexual harassment simply because the show is available on Netflix. The same analysis should hold true for music in the workplace. Certain songs are not played on the radio or have an altered radio version for a reason.
In Sharp, the United States Court of Appeals for the Ninth Circuit came to a similar conclusion, holding:
A workplace saturated with sexually derogatory content can constitute harassment “because of sex.” We have consistently sustained Title VII claims challenging a workplace “polluted with insult and intimidation.” Reynaga, 847 F.3d at 688; see also Steiner, 25 F.3d at 1463–64. “A raft of case law … establishes that the use of sexually degrading, gender-specific epithets, such as ‘slut,’ ‘cunt,’ ‘whore,’ and ‘bitch,’ … has been consistently held to constitute harassment based upon sex.” Forrest v. Brinker Int’l Payroll Co., LP, 511 F.3d 225, 229 (1st Cir. 2007) (internal quotation marks and citation omitted). Even if audible to all, lyrics loaded with such sexist slurs expose female employees to uniquely “disadvantageous terms or conditions of employment.” See Oncale, 523 U.S. at 80, 118 S.Ct. 998 (quoting Harris, 510 U.S. at 25, 114 S.Ct. 367 (Ginsburg, J., concurring)). Thus, the sort of “repeated and prolonged exposure to sexually foul and abusive music” that Sharp alleges falls within a broader category of actionable, auditory harassment that can pollute a workplace and violate Title VII.
Id. at *4.
The Ninth Circuit Court of Appeals pointed to other Circuit Court of Appeals decisions that support this finding.
First, the Ninth Circuit point to Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 804 (11th Cir. 2010), in which the 11 Circuit Court of Appeals held that a female employee challenging the radio programming played in her office could proceed to a jury trial on her Title VII claim where the program featured regular discussions about women’s anatomy, a graphic discussion of how women’s nipples harden in the cold, and conversations about the size of women’s breasts, among other things.
In Petrosino v. Bell Atlantic, 385 F.3d 210, 222 (2d Cir. 2004), the United States Court of Appeals for the Second Circuit held that a jury could reasonably find sex discrimination and sexually hostile work environment where “sexually offensive comments and graffiti” were commonplace in the work environment. Specifically, the Second Circuit Court of Appeals held, “that much of this offensive material was not directed specifically at Petrosino—indeed, her male co-workers would likely have traded sexual insults every morning and defaced terminal boxes with sexual graffiti regardless of Petrosino’s presence … —does not, as a matter of law, preclude a jury from finding that the conduct subjected Petrosino to a hostile work environment based on her sex.” Id. To the contrarty, the Second Circuit held that a Title VII claim should survive summary judgment and reach a jury when the conduct “was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men.” Id.
In the end, the Ninth Circuit Court of Appeals simply and, in my humble opinion, properly concluded: “even 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.” Sharp at *5.
Best Race Discrimination Lawyer Blogs on Point:
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Do I have a hostile work environment claim?
As our employment discrimination attorneys discuss above, each case is different and context matters. There is no stock answer available to you on a website, blog, or Google that will give you a definitive answer regarding whether you have a viable claim for gender or race discrimination, sexual harassment, or any other violation of Title VII. Instead of scouring the worldwide web for potential insight into your workplace situation, 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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