Employers who play music in the workplace – or allow employees to play music in the workplace – beware. The Ninth Circuit Court of Appeals recently held that the content of music played in the workplace could give rise to liability for hostile work environment sexual harassment under Title VII of the Civil Rights Act. While the Ninth Circuit’s analysis was limited to whether the plaintiffs’ claims – as pled – could state a claim, the ruling indicates that such a claim could succeed, at least in theory.

Background

In Sharp v. S&S Activewear, LLC, the Ninth Circuit analyzed whether music played in the workplace can constitute actionable hostile work environment harassment under Title VII. Stephanie Sharp and seven of her warehouse co-workers – including one man – sued their employer, S&S Activewear, alleging that S&S allowed its managers and employees to play “foul and abusive music” in the warehouse. The music was pervasive, according to plaintiffs’ allegations:

Blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape. Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict—let alone evade—the music’s reach. 

Plaintiffs alleged that playing the music constituted a hostile work environment based on sex. Plaintiffs alleged in their complaint that the music played “contained extraordinarily graphic and sexually foul content.”

S&S filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (Rule 12), arguing that plaintiffs failed to state a claim because the conduct alleged did not amount to discrimination because of sex. S&S argued that because both men and women claimed offense and because the music was played throughout the facility, it was not directed at a specific sex, specifically. The district court agreed with S&S and dismissed the action because plaintiffs did not allege (1) that any specific group (e.g., women) was targeted, or (2) that any individual/group was subjected to different treatment than another. Plaintiffs appealed the dismissal to the Ninth Circuit.

The Ninth Circuit reversed the district court’s dismissal, holding both that (1) “sexually derogatory content” – including music – could constitute harassment, and (2) content that offends both men and women can satisfy the “because of sex” requirement under Title VII. It is important to note that, as the case was dismissed at the motion to dismiss stage, the court accepted plaintiffs’ allegations as true. Neither court made any factual determination regarding the facts alleged or content of the music allegedly played.

Music as Harassment

The Ninth Circuit held that music – like other content or conduct – in the workplace can rise to sex-based harassment. The court reasoned that the use of derogatory language in the workplace or “lyrics loaded with such sexist slurs” alter the terms and conditions of employment such that they constitute harassment. The court likened music with derogatory, “sexually graphic,” and “misogynistic” language to ubiquitous sexually offensive comments or graffiti in the workplace. The court was, however, clear that it did not intend to “ascribe misogyny to any particular musical genre.”

Harassment Need Not Affect a Single Group

The Ninth Circuit rejected the district court’s finding that discrimination claims were “fatally flawed” because plaintiffs alleged that the music offended both men and women. The court explained that “sexually charged conduct may simultaneously offend different genders in unique and meaningful ways,” and thus male and female employees could bring hostile work environment claims alongside one another. The court rejected what it described as S&S’s “equal opportunity harasser defense,” reasoning that allowing such a defense would empower employers to create a universally hostile work environment as a shield, which “would leave a gaping hole in Title VII’s coverage.”

What This Means for Employers

While employers are generally expected to maintain policies and practices that ensure their employees are not discriminated against or exposed to a hostile work environment, this decision confirms that employers must consider (and potentially address) employee-created work conditions such as the playing of potentially offensive music – and other forms of employee expression, regardless of the chosen medium. Failure to do so may lead to litigation if not liability. This decision puts the employer in the unenviable position of determining whether specific genres, songs, or artists should be allowed in the workplace. The decision leaves unanswered some questions, such as whether employees could state a claim on the basis of music or media by an artist (or even a politician) who has expressed racist, sexist, or other offensive views, even where those views are not evident through the specific content an employer may have allowed.

This decision may have a chilling effect on employers who allow music in the workplace. Employers should remain vigilant about safeguarding employee working conditions, including monitoring what music or other entertainment is being watched or listened to in the workplace.