Sexual harassment can take many forms. Sometimes sexual harassment is obvious, such as improper touching, unwanted sexual advances, or constant jokes or insults of a sexual nature. On the other hand, at times it may not be as clear. What if the offending conduct is loud sexually derogatory music and what if the music is offensive to both men and woman equally? In a recent legal decision, Sharp v. S&S Activewear, LLC, the U.S. Court of Appeals for the Ninth Circuit ruled that sexually-charged music, which could be heard through the workplace and was offensive to both men and woman, could form the basis of an actionable claim for harassment.
In Sharp, eight former employees (7 female and 1 male) alleged that their employer created a hostile work environment by permitting managers and employees to routinely play “sexually graphic, violently misogynistic” music. According to the lawsuit, the music was blasted from commercial-strength speakers placed throughout the warehouse and sometimes employees would place speakers on a forklift and drive around the warehouse. When the employees complained to management, the employees allege that their complaints were ignored and that management took the position that the music was motivational.
Once litigation began, the employer defended its position by arguing that since the music was offensive to both men and women, the claim should be dismissed since it was not based on gender. The Ninth Circuit disagreed, and overturned the lower court’s decision, by ruling that “a male employee may bring a hostile work environment alongside female colleagues.” The Court explained that to rule otherwise would allow an employer to escape liability by asserting its “status as a purported ‘equal opportunity harasser.’” The Ninth Circuit also explained that music with sexually derogatory content, which saturates the workplace, can certainly form the basis for a sexual harassment claim.
The Sharp case is a good reminder that a hostile work environment can take many forms and that music can be offensive. Employers need to develop policies to ensure that the workplace is not polluted by sexually-charged offensive conduct. As a starting point, employers should remind employees that they cannot play music at work that has any sexual overtones (or music that contains lyrics that could be offensive to any protected group). Supervisors and managers should also be provided with appropriate training so they can quickly recognize situations in the workplace that could be offensive to other workers. In short, the workplace should be free of any conduct that could be perceived as harassing or offensive.
Scott Mirsky is a Principal in Miller, Miller & Canby’s Employment Law and Employment Litigation practice. He focuses his practice on advising and litigating business and employment disputes. He has more than 20 years of experience in handling non-compete and trade secret disagreements, employment claims, issues concerning independent contractors, intellectual property infringement cases, complex construction issues, wage and overtime disputes and breach of contract claims. Learn more about Miller, Miller & Canby’s Employment Law and Employment Litigation practices. Scott may be reached here.