Seven female employees and one male employee who worked for a sports apparel manufacturer in Nevada complained repeatedly about the music in the facility. One employee, Stephanie Sharp, finally decided to sue for sexual harassment, and the other seven joined her. They filed their case in federal district court, where it was dismissed in 2021, then appealed it to the Ninth Circuit Court of Appeals.
While many employees have been irritated by their coworkers’ taste in music, this workplace took it to a whole new level. First, the music was played so loudly all over the warehouse that it overpowered operational background noise and was nearly impossible to escape. Second, the songs often included “sexually graphic, violently misogynistic” themes that “served as a catalyst for abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos,” according to the appellate court in its June 2023 decision in Sharp v. S&S Activewear, LLC (9th Cir. 2023).
Because the music was played so loudly all over the warehouse, the employer argued that everyone heard it, that “both men and women were offended by the work environment,” and that this doomed Sharp’s claim of a violation of Title VII of the Civil Rights Act. The district court agreed with employer, but the Ninth Circuit Court of Appeals did not. It vacated the district court’s decision and instructed that court to reconsider with two key principles:
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Harassment, whether aural or visual, need not be directly targeted at a particular plaintiff to pollute a workplace and give rise to a Title VII claim.
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The challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim.
The appeals court added that an employer’s “status as a purported ‘equal opportunity harasser’ provides no escape hatch for liability,” citing a well-established case, Swinton v. Potomac Corp., 270 F.3d 794, 807 (9th Cir. 2001). Sharp and her colleagues will have their case reviewed by the district court in light of the Ninth Circuit’s interpretation of the law.
While one or two offensive songs heard in a workplace may not give rise to harassment, the court spoke of the pervasiveness of the offensive material that changed the working conditions female employees were required to endure. The lesson from this case is clear: Equal opportunity harassment is not protected under the law. This Employers Council whitepaper addresses the elements of unlawful harassment, identifies strategies for prevention, and provides guidance for responding to complaints.
If you have situations in your work environment that are creating persistent complaints, do not ignore them. Instead, contact Employers Council for assistance.
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