Sharp v. S&S Activewear Should Not be Music to Your Ears: Music in the Workplace Can Form the Basis for a Title VII Harassment Claim

By Rebecca Bruch, Esq.

Among the infinite list of efforts we make as employers to try to create a fun and welcome workplace, many organizations, particularly manufacturing operations, allow employees to play music either in a workspace which may flow over to where others can hear, or over loudspeakers for all to “enjoy.” Such was the situation at S&S Activewear, a manufacturing operation/warehouse located in Reno. On June 7, 2023, the Ninth Circuit issued a ruling on a case which involved that company. Eight former employees, seven women and one man, claimed that S&S permitted managers and employees to play “sexually graphic and violently misogynistic music” throughout the warehouse.  Consistent with other circuits, the Ninth Circuit ruled that such music can form a hostile work environment even when (1) it is not directed at any particular individual employee, and (2) even if it offends both female and male employees. Consistent with other rulings in many other cases, the court was not persuaded by S&S’s argument that it was an “equal opportunity harasser.”

The alleged practice at S&S’s 700,000-square-foot warehouse was that songs were routinely played which denigrated women and used offensive terms. Songs with titles like “Blowjob Betty” contained very offensive lyrics that glorified prostitution. Other songs described extreme violence against women, detailing a pregnant woman being stuffed into a car trunk and driven into water to be drowned. According to the court, “the music was nearly impossible to escape.” Some forklift drivers would place speakers on their forklifts and drive around the warehouse, “making it even more difficult to predict, let alone evade,” according to the court. The music instigated abusive conduct by male employees who would pantomime sexually graphic gestures, yell obscenities, and make sexually explicit remarks, as well as openly share pornographic videos.

The workforce at S&S was equally divided between men and women. Most complaints came from women but included men. For almost two years, complaints were made almost daily, but management defended the music as “motivational” until a lawsuit was filed. The District Court ruled that the Title VII claim could not prevail because “both men and women were offended by the work environment.” It dismissed the case. On appeal by the plaintiffs, the Ninth Circuit disagreed.

The Ninth Circuit returned the case to the District Court for reconsideration based on two key principles:

  1. Harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim; and
  2. The challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim.

According to the court, “An employer’s status as a purported ‘equal opportunity harasser’ provides no escape hatch for liability.”

In the court’s analysis, some of the key observations were pivotal. It stated, “It is enough if such hostile conduct pollutes the victim’s workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.” The court went out of its way to distinguish severe and pervasive conduct from “simple teasing, offhand comments and isolated incidents, unless extremely serious, will not amount to discrimination.” Courts across the country have reiterated over and over that Title VII should not expand into a general civility code for the American workplace. With that explanation, the court held that the music was more than offhand foul comments; it allegedly infused the workplace with sexually demeaning and violent language, which may support a Title VII claim even if it offended men as well as women.”

The court referenced similar findings in other circuits, e.g., the Eleventh Circuit, where a workplace allowed employees to play “a crude morning show from the central office” and allowed employees to regularly sing songs about gender-derogatory topics.” The plaintiff tried to change the station, turn down the volume, or bring in her own radio to drown out the offensive sounds, all to no avail. The court held that a member of a protected group cannot be forced to endure pervasive, derogatory conduct that are gender -specific just because there may also be indiscriminate vulgar conduct.

The Sharp case is not over. It has been sent back to the District Court for reconsideration by the District Court.  Based on decisions in many other circuits, I could take a guess what will come of the remand. But in any event, as HR professionals, you work diligently every day to monitor and police your workplaces. As you walk that path, keep in mind that those same responsibilities apply to the music being played in a workspace by an individual employee, as well as music being broadcast across the whole area.

If you have any questions, you are invited to contact  any of the employment lawyers at Lemons, Grundy & Eisenberg.