FACING THE MUSIC: IS EQUAL OPPORTUNITY HARASSMENT IN THE WORKPLACE ILLEGAL?

[A]n employer cannot evade liability by cultivating a workplace that is broadly hostile and offensive. Sharp v. S&S Activewear, LLC, 69 F.4th 974, 982 (9th Cir. 2023) Hostile Work Environment The phrase “hostile work environment” is a legal term of art denoting a particular type of legal claim – one where an employee is subjected to an intimidating, hostile, or offensive work environment based on a protected class. (Remember that offensive behavior in the workplace that  is not based on a protected class does not violate Title VII of the Civil Rights Act of 1964, as Title VII is not a general civility code. See Oncale  v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). In 1986, the United States Supreme Court explicitly recognized that a hostile work environment on the basis of sex violates Title VII. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). But what does it mean to  create a hostile work environment on the basis of sex? The United States Court of Appeals for the Ninth Circuit recently had the opportunity  to weigh in on that question. Music at Work Offensive Music Leads to a Lawsuit Eight former employees (seven women and one man) filed suit against S&S Activewear (S&S). In their complaint, they alleged that S&S  allowed “sexually graphic, violently misogynistic” music to be blasted on a routine basis from commercial-strength speakers such that it  permeated to workspace of all its employees at its 700,000-square-foot warehouse located in Reno, Nevada. Sharp v. S&S Activewear, LLC,  69 F.4th at 977 (9th Cir. 2023). According to the former employees, songs like “Blowjob Betty” by Too $hort and “Stan” by Eminem  demeaned women with terms like “hos” and “bitches”, glorified prostitution, and described violence toward women. Id. The music  overshadowed operational noise and “was nearly impossible to escape.” Id. Additionally, employees would sometimes drive around with  music blaring from speakers on forklifts. Id. The former employees who filed suit also claimed that the music encouraged male employees to make sexually explicit remarks, engage in  sexually graphic gestures, shout obscenities, and share pornographic videos. Id. And despite frequent complaints, S&S management justified  the music at work as motivational and allowed it to continue for almost two years. Id. The eight former employees eventually filed suit in  United States district court against S&S claiming that the music and related conduct created a hostile work environment under Title VII. Id. District Court Dismisses the Case, but Employees Appeal In response to the lawsuit, S&S argued that the former employees’ claim regarding  the music “did not constitute discrimination because of sex since both men and women were offended by, and all employees were exposed to, the music.” Id. As evidence that both men and women were offended by the music, one only need look at the former employees who were the  plaintiffs in the lawsuit, as they included seven women and one man. Therefore, if the offensive music was directed at both sexes and offensive to both sexes, then how could it have created  a hostile work environment based on the protected class of sex? The United States district court agreed with S&S and dismissed the former employees’ hostile work environment claim related to the music,  while keeping alive the former employees’ claim related to the other behavior by male employees. The court noted that there was no allegation in the complaint “‘that any employee or group of employees were targeted, or that one individual or group was subjected to  treatment that another group was not.’ Because the music offended men and women alike . . . it could not be the basis of a sexual harassment  claim.” Id. at 978. The former employees’ appealed the district court’s dismissal of their hostile work environment claim based on the music  to the Ninth Circuit. Equal Opportunity Harassment  Can Sexually Derogatory Music Audible to All Produce a Hostile Work Environment? The Ninth Circuit examined its own cases as well as cases from its sister circuits and the United States Supreme Court in determining that  “sexually graphic, violently misogynistic” music is a “form of harassment that can pollute a workplace and give rise to a Title VII claim.” Id. at  981. First, the Ninth Circuit noted that courts have consistently held that “sexually degrading, gender-specific epithets” constitute harassment on the basis of sex. Id. at 979. As noted by the Supreme Court, “[e]ven if audible to all, lyrics loaded with such sexist slurs expose  female employees to uniquely ‘disadvantageous terms or conditions of employment.’” Id. (citing Oncale, 523 U.S. at 80.) Next, the Ninth Circuit looked to other circuit courts of appeals for insight. In examining a female employee’s allegations that her male co-workers regularly played a “crude morning show” from a radio in the central office and routinely sang “songs about gender-derogatory topics”, the Eleventh Circuit noted that "words and conduct that are sufficiently gender-specific and either severe or pervasive may state a  claim of a hostile work environment, even if the words are not directed specifically at the [employee]." Reeves v. C.H. Robinson Worldwide,  Inc., 594 F.3d 798, 811 (11th Cir. 2010). The Eleventh Circuit also stressed 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." Id. at 810. Likewise, the Second Circuit in a lawsuit filed by a female employee determined that a reasonable jury could conclude that a hostile work  environment on the basis of sex existed where “sexually offensive comments and graffiti” were commonplace. Petrosino v. Bell Atlantic, 385 F.3d 210, 222 (2d Cir. 2004). The Second Circuit explained that “[t]he fact that much of this offensive material was not directed specifically  at Petrosino – indeed, her male co-workers would likely have traded sexual insults every morning and defaced terminal boxes with sexual graffiti regardless of Petrosino's presence . . . – does not, as a matter of law, preclude a jury from finding that the conduct subjected Petrosino to a hostile work environment based on her sex." Id. Therefore, the Ninth Circuit in Sharp held that “[w]hether 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.” 69 F.4th at 981. Can Male and Female Plaintiffs Coexist in a Title VII Lawsuit? The Ninth Circuit did not think much of S&S’s argument that the fact that both male and female former employees had filed suit over their offense to the same music somehow insulated S&S from suit under Title VII. In that regard, the Ninth Circuit held as follows.

It should be no  surprise that sexually charged conduct may simultaneously offend different genders in unique and meaningful ways. While words from a  man to a man may be differently received than words from a man to a woman, harassing both men and women cannot cure bad conduct and  does not rule out the possibility that both men and women have viable claims against their employer for sexual harassment. Thus, in general terms, a male employee may bring a hostile work environment claim alongside female colleagues.

69 F.4th at 982 (internal citations and punctuation omitted). Therefore, the court explicitly rejected S&S’s “equal opportunity harasser” defense and noted that its case law was clear that equal  mistreatment of men and women on the basis of sex “provides no defense to an accusation of sexual harassment.” Id. (The court also noted  that such a defense also will not work in claims of discrimination brought based on other protected classes such as race.) Id. Thus, the Ninth  Circuit reversed the district court’s decision to dismiss the former employees’ claim that the music at issue created a hostile work environment on the basis of sex. Employer Takeaways This case makes it clear that employers should not turn a blind eye to what type of music, entertainment, behavior, or speech is occurring in  the workplace – both while employees are working and during breaks. Sexually explicit or other inappropriate material, behavior, or speech that denigrates people on the basis of a protected class (sex, race, etc.) can absolutely create a legally actionable hostile work environment  regardless of whom it offends. It does not matter whether such material or behavior is directed at specific individuals or no one in particular.  If it is severe and pervasive and both objectively and subjectively offensive, then an employer is at risk of not only having a bad work environment but an illegal one as well. Therefore, if an employer becomes aware of such material or behavior in its workplace, it should immediately conduct an investigation and take appropriate action to stop the material from being shared or the behavior from occurring.   By Geoffrey A. Lindley, Partner Rainey, Kizer, Reviere & Bell, PLC