Fed up with hearing “very offensive” songs like Eminem’s “Stan” and Too $hort’s “B*job Betty” on the job, Stephanie Sharp and several other employees (including a male) filed a hostile work environment claim under Title VII against their employer.  Plaintiffs claimed they could not escape the music because it was “[b]lasted from commercial-strength speakers” that were mounted on forklifts and driven around the warehouse where they worked.  Sharp v. S&S Activewear, LLC, 2023 WL 3857491 (9th Cir. June 7, 2023).

Plaintiffs claimed the music encouraged male employees to make sexually graphic gestures and remarks and to openly share pornographic videos in the workplace.

A lower court dismissed the claim, relying upon what is sometimes referred to as the “equal opportunity harasser” defense, which some employers have argued should shield them from liability where there is evidence that employees outside the protected group have been subjected to the same or similarly objectionable behavior.  In short, the trial court found that the claim failed as a matter of law because the music was offensive to both men and women.

However, the Ninth Circuit reversed, squarely rejecting the “equal opportunity harasser” defense and holding that harassment need not be directly targeted at a particular plaintiff to support a harassment claim.  The court found that the repeated and prolonged exposure to music “saturated with sexually derogatory content” could constitute “music as harassment.”

Importantly, the result may be different under California’s anti-discrimination law, the Fair Employment and Housing Act (FEHA).  In 2006, the California Supreme Court held in the landmark Lyle v. Warner Bros. Television Prods. that a fired female assistant who had worked in the writers’ room of the television show “Friends” and who complained of hearing lewd and offensive language and sounds and observing obscene gestures made by the writers did not have a viable sexual harassment claim because:

Here, the record discloses that most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace. Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA.

From a practical point of view, employers should renew their efforts to police the workplace and eliminate any visual or auditory materials that could be considered offensive. Employers should also train their employees, and especially supervisors, to refrain from saying, doing, or tolerating anything that could be construed as illegal harassment while encouraging employees to come forward with their complaints to HR as soon as they perceive something that could be harassing.