Ninth Circuit Revives Sexual Harassment Suit Based on Music

Employment Law

Harassment doesn’t have to target a specific individual to be actionable under Title VII, a panel of the Ninth U.S. Circuit Court of Appeals has ruled in a class action alleging sexual harassment.

Eight former employees (seven women and one man) filed suit against S&S Activewear, alleging that the employer permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its 700,000-square-foot warehouse in Reno, Nevada.

According to the plaintiffs, the music’s content denigrated women and used offensive terms like “hos” and “bitches.” The music was blasted from commercial-strength speakers throughout the warehouse and was nearly impossible to escape; sometimes employees placed the speakers on forklifts and drove around the warehouse.

The music allegedly served as a catalyst for abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks and openly shared pornographic videos.

Sharp’s complaint alleged that the music and related conduct created a hostile work environment in violation of Title VII.

S&S moved to dismiss, arguing that the challenged conduct did not constitute discrimination because of sex since both men and women were offended by, and all employees were exposed to, the music. The district court agreed with the employer and granted the motion.

Sharp appealed and the Ninth Circuit reversed.

“A workplace saturated with sexually derogatory content can constitute harassment ‘because of sex,’” the panel wrote. “We have consistently sustained Title VII claims challenging a workplace ‘polluted with insult and intimidation.’ ‘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.’ Even if audible to all, lyrics loaded with such sexist slurs expose female employees to uniquely ‘disadvantageous terms or conditions of employment.’ 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.”

This conclusion aligned with other circuits, the court said, including the Second, Fourth, Sixth and Eleventh Circuits.

Sharp was forced to tolerate the music and the toxic environment as a condition of continued employment, as were other female employees.

“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,” the court said.

The panel also emphasized that male and female plaintiffs can coexist in the same Title VII action.

“S&S’s arguments to the contrary hinge on an ‘equal opportunity harasser’ defense that we simply do not countenance,” the court wrote. “An employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace. Creating such an approach would leave a gaping hole in Title VII’s coverage.”

The court remanded to the district court.

To read the opinion in Sharp v. S&S Activewear, LLC, click here.

Why it matters

The Ninth Circuit’s instructions to the district court on remand provide a valuable road map for employers: 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. In addition, the challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim, as an employer’s status as a purported equal opportunity harasser provides no escape hatch for liability.



pursuant to New York DR 2-101(f)

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