Hunton Employment & Labor Perspectives

Last week, the Ninth Circuit issued an opinion in Sharp v. S&S Activewear, L.L.C. where it confirmed that music in the workplace can form the basis of a Title VII sex harassment claim even when it is (1) not directed at any particular individual employee, and (2) offends both female and male employees.

Sharp involved eight plaintiffs (seven women and one man) who filed a lawsuit against S.S. for allegedly allowing its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its large warehouse.  According to plaintiffs, the music was played through commercial-strength speakers and was so overpowering that it drowned out background noise.  The music also allegedly caused  some male employees to make sexually graphic gestures, yell obscenities, make sexually explicit remarks, and share pornographic videos. The music focused on women but allegedly offended male and female employees.     

After plaintiffs filed the lawsuit, S.S. moved to dismiss the complaint for failure to state a claim.  The district court agreed with S.S., and dismissed the complaint without leave to amend for two reasons. First, the court reasoned that plaintiffs failed to state a Title VII claim because there was no allegation that a specific employee or group was targeted or treated differently by the music.  And second, since the music offended both women and men, it could not serve as the basis for a sexual harassment claim. In the district court’s estimation, this fact was a “fatal flaw” for the harassment claim.

On appeal, the Ninth Circuit disagreed with the district court.  The Ninth Circuit reaffirmed the principle that harassing conduct need not be directed at a particular employee to state a sexual harassment claim under Title VII.  Rather, the court held that “the sort of ‘repeated and prolonged exposure to sexually foul and abusive music’ that [plaintiffs allege] falls within a broader category of actionable, auditory harassment that can pollute a workplace and violate Title VII.” This conclusion, the court explained, aligns it with the Eleventh Circuit Court of Appeals case Reeves v. C.H. Robinson Worldwide, Inc. which held a Title VII claim based on radio programming playing crude morning shows in the workplace could proceed to trial.  There, the Eleventh Circuit noted that “a member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct.”

Finally, the Ninth Circuit rejected the district court’s rationale that plaintiffs’ claim was fatally flawed because it offended both women and men.  In doing so, the court explained that although men and women may perceive conduct differently, it does not rule out the possibility that both men and women have a viable harassment claim.  Further, an employer cannot evade liability by simply cultivating a work environment that is broadly hostile and offensive.  The court therefore concluded that music broadly offensive to both men and women is not a fatal flaw in bringing a harassment lawsuit under Title VII.