Think “music soothes the savage beast”? Well, depending on the lyrics, decibel levels, frequency of play, and crowd response, it could lead to a major lawsuit for employers who fail to monitor the playlist in their workplace.
Recently, in Sharp v. S&S Activewear, LLC, 2023 U.S. App. LEXIS 14130, the United States Court of Appeals for the Ninth Circuit held that a group of plaintiffs stated a hostile work environment claim based on sex discrimination because the workplace was permeated daily with loud music containing sexually explicit, violent, and misogynistic lyrics.
In Sharp, seven women and one man (“Plaintiffs”) filed a sexual harassment complaint alleging their employer, S&S Activewear, LLC (“the Company”), permitted its managers and employees to play “sexually graphic and violently misogynistic music” throughout its 700,000-square-foot-warehouse.
The explicit songs included “Blow*** Betty” by the artist Too $hort and “Stan” by Eminem. Plaintiffs alleged the songs denigrated women by using offensive terms to describe them like “bitc***.” Plaintiffs noted that “Blow*** Betty” described a woman performing oral sex and contained “very offensive lyrics that glorified prostitution.” Eminem’s “Stan” described a pregnant woman being loaded into the trunk of a car, driven into a body of water, and drowning.
Both songs, and songs with similar content, played throughout the warehouse from “commercial strength” speakers and speakers attached to roving forklifts. The music was so loud it muffled the warehouse’s operational sounds. Significantly, Plaintiffs further alleged the music served as a “catalyst” for male employees to then pantomime sexual gestures, shout obscenities, make sexually explicit comments, and share pornographic videos.
The Company received complaints almost daily for two years from several employees but did nothing to stop the music. Rather, the Company believed the music was “motivational” for hardworking warehouse employees, and allowed it to continuously play within the warehouse.
Plaintiffs filed suit, but the Company won the first round. The District Court dismissed the claim reasoning that because the music was offensive to both men and women, and every employee (regardless of gender) was exposed to it, no sex discrimination claim could stand. Plaintiffs appealed to the Ninth Circuit.
The Ninth Circuit found the District Court’s reasoning and the Company’s position tone deaf. First, the Court held that exposing both men and women to a hostile work environment is not a Title VII defense. Second, it found the workplace harassment was “sufficiently severe or pervasive to alter the conditions of employment.”
Third, it held that sex discrimination need not be directed toward a particular plaintiff. Rather, “it is enough . . . if such hostile conduct pollutes the victim’s workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.”
Fourth, the Sharp Court noted it was not a solo act, pointing to the Eleventh Circuit’s decision in Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 803 (2010) (en banc). The Reeves Court found a sexually hostile work environment stemming from the routine playing of “crude morning shows from a central office radio,” singing derogatory songs, and making gender based demeaning references about women such as “bitc***” and “whor**.”
Consequently, Sharp reversed the District Court’s decision with this key refrain:
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 implications of such a decision could be far reaching and might lead to courts and/or juries parsing musical lyrics to determine if they are “sexually offensive” and “misogynistic,” or unoffensive “good time rock-n-roll.” Regardless, Sharp offers some important takeaways:
- Context matters. Listening to music that may be considered derogatory or obscene through headphones or in an enclosed office-space is different than playing the offensive music throughout an office or warehouse daily.
- Do not ignore or minimize repeated complaints of allegedly offensive conduct or language. Investigate and take corrective action if warranted.
- Training on unlawful harassment in the workplace is critical.
As Eminem asks in his song “Who Knew:” “[H]ow much damage can you do with a pen?” Sometimes a lot.
The author would like to recognize Sadie C. Hobbs, Michael Best Labor and Employment Relations Summer Associate, for her contributions to this piece.