In today’s workplace, many employers allow employees to play music. While this is generally a cost-effective way to improve culture, morale, and productivity; it also creates potential exposure for hostile work environment and sexual harassment claims under Title VII of the Civil Rights Act of 1964. This is particularly true given a recent decision from the U.S. 9th Circuit Court of Appeals (whose rulings apply to all employers in Arizona, Alaska, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) in which the court unequivocally held that music played in the workplace can constitute actionable hostile work environment harassment under Title VII.
Audio Offense
Stephanie Sharp worked for apparel manufacturer S&S Activewear. She and seven of her warehouse coworkers (including one male) sued their employer, alleging it allowed managers and employees to play “foul and abusive” music in the workplace. The offending songs included “Blowjob Betty” by Too $hort and “Stan” by Eminem.
The songs—which were broadcasted on commercial-strength speakers throughout a 700,000 square-foot warehouse—used terms like “hoes” and “b*tches,” “glorified prostitution,” and detailed extremely violent scenarios with women. The employees alleged the music “contained extraordinarily graphic and sexually graphic content” and was nearly impossible to escape because the speakers were placed throughout the warehouse and sometimes on forklifts driven around the warehouse.
In finding for the employees, the court held that (1) “sexually derogatory content” including music can constitute harassment; (2) harassment need not be specifically targeted to a particular individual to give rise to a Title VII claim; and (3) content that offends both men and women can satisfy the “because of sex” requirement under Title VII. In reaching its decision, the court explained that the use of derogatory language in the workplace or “lyrics loaded with such sexist slurs” alters the terms of employment such that they constitute harassment.
The One with the Hostile Work Environment Complaint
The Sharp case draws an interesting contrast to Lyle v. Warner Brothers Television Productions, in which a writer’s assistant unsuccessfully filed a hostile work environment claim alleging she was subjected to sexually coarse and vulgar language and conduct while working on the set of the hit television show Friends.
In Lyle, the court’s holding largely hinged on the following: (1) most of the sexually coarse and vulgar language wasn’t aimed at the assistant or other women in the workplace; (2) the production was a creative workplace focused on generating scripts for an adult comedy show with sexual themes; and (3) the comments weren’t severe enough or sufficiently pervasive to create a hostile work environment or an abusive environment.
The two cases have several strikingly similar facts. For one, in both cases, the complaining employees showed other employees made sexual gestures in front of them. Additionally, in both cases, the conduct and offensive language were not specifically directed at the complaining employees. Likewise, in both cases, sexually coarse and vulgar language was used in front of multiple genders. Finally, neither case involved claims of unwelcome sexual advances.
Most notably, even though Lyle was decided by a California state court and Sharp was decided by the 9th Circuit, both courts relied on case law decided under Title VII, including when Lyle interpreted California’s Fair Employment and Housing Act (FEHA) and its prohibitions against sexual harassment.
Two Different Work Environments
So why two different outcomes? First, in reaching its ruling, the Lyle court highlighted that the “creative workplace” at issue in Lyle was the Friends’ set—one focused on generating scripts for an adult-oriented comedy show featuring sexual themes. This workplace was drastically different from the one in Sharp, a warehouse subjecting employees to warehouse-wide graphic and misogynistic music, which served no employment-related purpose.
Further, the Lyle court found that the alleged crude comments were made once or twice, weren’t directed at the complaining employee, and the complaining employee classified them as “juvenile” and “annoying” rather than “extreme” or “destructive.”
In contrast, the Sharp court found the music was persistent and routinely played loud enough to be inescapable, was classified by employees as sexually graphic and violently misogynistic, and continued despite almost daily complaints by employees. Sharp v. S&S Activewear, L.L.C., 69 F.4th 974 (9th Cir., 2023).
Bottom Line
Ultimately, the Sharp decision sends a clear message to employers that before playing or allowing employees to play music (or express themselves through other mediums) in the workplace, you must determine whether such content is appropriate or could be classified as hostile, especially if the music serves no employment-related purpose.
As an added precaution, you should consider implementing a “music policy” with clear guidance on the types of lyrics or other entertainment prohibited in their workplace. This is particularly true given that the Sharp decision didn’t “ascribe misogyny to any particular music genre” and many popular songs today contain explicit lyrics. Employers failing to take these precautions risk creating a hostile work environment and being held liable under Title VII.
Juliet S. Burgess is the founding partner and Taylor M. McGrew is an associate at The Burgess Law Group in Phoenix, Arizona. Juliet and Taylor represent employers of varying sizes and industries with respect to labor and employment law, human resources matters, commercial litigation, trainings, and workplace investigations. For more information, please visit www.theburgesslawgroup.com.