Can Sexually Graphic Music In The Workplace Create A Hostile Work Environment?
For more than twenty years, our sexual harassment lawyers in Citrus County, Florida have represented sexual harassment victims. Through their decades of experience representing sexual harassment victims, our sexual harassment attorneys in Inverness, Florida know that some employees are exposed to sexually graphic music in the workplace. Even when employees complain about offensive sexual content of the music, employers routinely deny that sexually graphic music in the workplace constitutes sexual harassment and refuse to stop playing the music. In this article, our sexual harassment lawyers in Citrus County, Florida explain how the decision in Sharp v. S & S Activewear, LLC, Case No. 21-17138 (9th Cir. June 7, 2023) establishes that sexually graphic music in the workplace can create a sexually hostile work environment in violation of federal employment discrimination law.
Sexual Harassment Lawsuit
In that case, eight employees (“the Employees”), seven woman and one man, brought a sexual harassment lawsuit against their former employer, S & S Activewear, LLC (S & S), pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII protects employees from sexual harassment. To violate Title VII, sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment. The employees claim that they were required to work in a sexually hostile environment in violation of Title VII.
The Employees allege that while they worked at S & S’s warehouse, S & S permitted its managers and employees to routinely play sexually graphic and misogynistic music. The music referenced violence towards women, contained gendered expletives, and was sexually explicit in nature. Blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape. Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict—let alone evade—the music’s reach. The Employees and many of their co-workers, both men and women alike, were offended by the music. Despite “almost daily” complaints, S & S management defended the music as motivational and stood by its playing for nearly two years until litigation loomed.
The trial court dismissed the Employee’s hostile work environment claim. The trial court concluded that the music’s offensiveness to both men and women nullified any discriminatory potential. In doing so, the trial court adopted S & S’s argument that because both men and women were offended by the sexually explicit and offensive nature of the music, no individual or group was subjected to harassment because of their sex or gender.
In support of its conclusion, the trial court cited the U.S. Supreme Court’s decision in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) for the proposition that “Title VII does not prohibit all verbal or physical harassment in the workplace, it is directly only at discrimination . . . because of sex.” Based on this principle, the trial court reasoned that the Employee’s allegations that both men and women were offended by the music doomed their Title VII claim because they could not establish that “any employee or group of employees were targeted, or that one individual or group was subjected to treatment that another group was not.” In the absence of allegations showing that an employee or group of employees were targeted, or that one individual or group was subjected to treatment another group was not, the trial court explained, the Employees could not establish that the “offending conduct was discriminatory.”
Sexually Hostile Work Environment Created
On appeal, the U.S. Ninth Circuit Court of Appeals reversed the trial court’s decision and reinstated the Employee’s claims. Unlike the reversed trial court, the appellate court pointed out that “individual targeting is not required to establish a Title VII violation.” The court of appeals also noted that the trial court failed to account for binding U.S. Supreme Court precedent. In Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the Court made clear that it is no “defense for an employer to say it discriminates against both men and women because of sex.” “Instead of avoiding Title VII exposure,” the Bostock Court explained, “this employer doubles it.”
In applying these principles, the Ninth Circuit found that “the music at S & S infused the workplace with sexually demeaning and violent language, which may support a Title VII claim even if it offended men as well as women.” Thus, the Ninth Circuit concluded that “exposing employees to misogynistic and sexually graphic music can be discrimination because of sex, even where the employer exposes both women and men to the material and even though both women and men find the material offensive.”
In applying its holding to the facts, the Ninth Circuit rejected the trial court’s determination that the “warehouse wide” playing of music was an indication of neutrality, because “this fact may better reflet the music’s invidious pervasiveness.” The court of appeals also observed that because S & S’s “management was unreceptive to complaints,” the Employees were “forced to tolerate music and toxic environment as a condition of continued employment.” “And, even if the ubiquitous music was not ( and need not have been) targeted toward any particular woman,” the appellate court explained, “female employees allegedly experienced the content in a unique and especially offensive way.” “Whether sung, shouted, or whispered, blasted over speakers or relayed face-to-face,” the Ninth Circuit emphasized, “sexist epithets can offend and transform a workplace into a hostile environment that violates Title VII.”
Citrus County Sexual Harassment Lawyers
Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment lawyers in Citrus County, Florida have dedicated their practice to fighting for the rights of sexual harassment victims. If you have been sexually harassed at work or have questions about your rights as a sexual harassment victim, please contact our office for a free consultation with our sexual harassment lawyers in Citrus County, Florida. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.