[co-author: Max Sun]*

Q: Can sexually graphic, misogynistic music played in the workplace be considered sexual harassment even if it is not directed at a particular employee and found offensive by employees of both sexes?

A: Yes. On February 9, the Ninth Circuit Court of Appeals concluded in the case of Sharp v. S.S. Activewear that sexually explicit, misogynistic music broadcasted throughout the workplace can constitute sex-based harassment in violation of Title VII.

Background and the Court’s Ruling

In this case, a class of eight plaintiffs, led by Stephanie Sharp, sued S.S. Activewear after the company allowed music containing lyrics that “referenced violence against women, contained gendered expletives, and were sexually explicit in nature” to be played in its manufacturing facility. It is not clear if this was the only type of music played in the facility. The music was selected by the managers and some employees at the warehouse and then broadcast over the facility’s speakers. Due to the strength of the speakers and their positions throughout the warehouse, the music was so overpowering that it drowned out all background noise and could be heard by all employees. Some employees would even place the speakers on forklifts and drive them around the warehouse, making it impossible to avoid the music or predict where it would be broadcasted. While the lyrics were only derogatory toward women, both male and female employees were allegedly offended by the lyrics. Furthermore, the company’s broadcast of the music throughout the factory allegedly emboldened some male employees to make sexual gestures and explicit remarks, yell obscenities, and share pornographic videos with other employees.

Multiple plaintiffs complained about the music to their supervisors and the human resources manager, but the managers defended the music as “motivational” and failed to respond to the employee complaints. Sharp ultimately decided to resign and sued, asserting that she was constructively discharged since she quit because of the hostile work environment.

This case was first litigated in the U.S. District Court for the District of Nevada where the plaintiffs alleged sexual harassment and retaliation in violation of Title VII. The court ultimately granted S.S. Activewear’s motion to dismiss for two reasons. First, the court found no valid Title VII claim since there was no specific employee or group being targeted or isolated by the music being played. Second, the court found that a valid sexual harassment claim could not exist since men and women were both offended by the content of the music. In the court’s view, conduct that is offensive to both genders could not constitute sexual harassment.

The plaintiffs appealed to the Ninth Circuit Court of Appeals, which overturned the District Court’s ruling. The Court of Appeals first analyzed whether a Title VII claim could be found in cases where the offensive conduct in question was applied to all employees, i.e., the music was audible to all employees. The court did not find this fact to be dispositive, however, stating that the lyrics exposed female employees to “uniquely disadvantageous terms or conditions of employment” by forcing them to listen to the derogatory music while they worked. The court concluded that harassment does not need to be directed at a particular employee to constitute sexual harassment under Title VII, noting that the “repeated and prolonged exposure to sexually foul and abusive music falls within a broader category of actionable, auditory harassment.”

The Court of Appeals also reviewed the lower court’s dismissal on the grounds that both men and women found the music in the warehouse to be offensive. In analyzing this argument, the court held 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.” The court specifically noted that “sexually charged conduct may simultaneously offend different genders in unique and meaningful ways.” Therefore, the fact that both men and women found the conduct to be offensive does not rule out the possibility that both men and women may have viable claims against their employer for sexual harassment. This decision also utilized supporting caselaw from other jurisdictions. One such case discussed the widespread use of racial slurs in the workplace, while another analyzed the broadcast of sexually explicit radio programs that were derogatory toward women. In both cases, the offensive conduct in question was applied ubiquitously, even to workers to whom the offensive remarks did not apply. Thus, in the court’s view, employers cannot escape liability by creating a work environment that is hostile to all employees.

Key Takeaways for Employers

In light of the Sharp case, employers cannot rely, at least in the Ninth Circuit, on a defense of being an “equal opportunity harasser.” Considering this decision, employers should take care to do the following:

• Create a respectful environment: Employers should be sure to remove potentially offensive visual and auditory materials from the work environment.
• Clearly define company policies: Employers should create comprehensive policies that clearly prohibit the distribution of sexually explicit content, including auditory content, in the workplace. These policies should be communicated to all employees, while clearly emphasizing the consequences for violators.
• Provide regular training: Employers should provide regular sensitivity training to employees on what kinds of conduct constitute harassment, providing concrete examples, and emphasizing the detrimental effect of such conduct on the workplace.
• Promote confidential reporting: Employers should create confidential channels through which employees can report harassment without the fear of retaliation. These complaints should then receive a thorough investigation followed by corrective action where appropriate.

*Max Sun is a 2023 summer associate with Troutman Pepper and not admitted to practice law in any jurisdiction.