Ninth Circuit Requires Employers to Micromanage All Employee Actions- Including What Songs to Play on the Loudspeakers!
Music at work…
can now spur sexual harassment claims!
Employers may be surprised to learn that they may now be held liable for sexual harassment under the Civil Rights Act if they allow offensive music to be played in the workplace. Under the Civil Rights Act, employers may not discriminate against an individual because of that person’s sex, and the Supreme Court has expanded the law to also prohibit employers from harassing an individual because of that person’s sex. Sexual harassment now includes “verbal… conduct of a sexual nature” that “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimating, hostile, or offensive working environment.” See 29 C.F.R. §1604.11(a).
The Ninth Circuit has recently held that an employer may be found liable for sexual harassment if the employer allows its own managers and employees to regularly play “sexually graphic, violently misogynistic” music throughout the workplace. Stephanie Sharp et al v. S&S Activewear L.L.C. (filed on June 7, 2023). Yes, employers beware! Your employees may now play music that is sexually offensive and you may be on the hook for sexual harassment as a result.
The Ninth Circuit in Sharp, along with other circuits, held that “music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex.” The Court went on to identify some of the abusive conduct by male employees that fostered a hostile or abusive environment who “pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos.”
In Sharp, the Ninth Circuit Court of Appeals made two very specific findings:
harassment does not need to be targeted at any particular person in order to “pollute a workplace” and be deemed sexual harassment and
the fact that both men and women are offended by the work environment does not prevent an employee from asserting a claim for sexual discrimination.
What is interesting about the Ninth Circuit’s holding is that it defines sexual discrimination and harassment broadly. Both men and women may be offended by music that contains lyrics or actions that are derogatory toward women. Offensive lyrics and gestures, if seen and heard by anyone who is offended in the workplace, can be grounds for liability. In addition, even a workplace where only men are working and listening to the music can still be breeding grounds for sexual discrimination or sexual harassment claims. This is because anyone – man or woman- can be offended by the lyrics or actions and no particular person needs to be targeted. As long as the offensive music or action is seen at work by an employee, an employer may be held liable. The traditional notions of offensiveness have been turned on its head.
The Ninth Circuit’s finding essentially makes employers liable for music that is played by its employees when the music is played throughout the workplace for all to hear and is offensive to either men or women. Employers may now be compelled to regulate the type of music employees may be allowed to play in the workplace – or limit the type of music to a predetermined list of songs or music channel.