Don’t Play That Funky Music — The Music Might Be Harassing

Seyfarth Synopsis: A Ninth Circuit opinion has held that music with sexually derogatory and violent content might give rise to a claim for discrimination based on sex even if the music offends both men and women. Sharp, et al v. S&S Activewear, L.L.C.

The Facts

Eight individuals, which included seven women and one man, sued their former employer, S&S Activewear, L.L.C. (S&S), an apparel manufacturer, for sexual harassment under Title VII. The employees alleged that S&S permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its warehouse, which, in turn, fostered abusive conduct by some male employees.

The Trial Court Decision

In December 2021, the federal District Court for Nevada dismissed the employees’ complaint with prejudice for failure to state an actionable Title VII claim on the ground that the explicit music did not constitute discrimination because of sex on account of the fact that both men and women were exposed to, and offended by, the music. The district court further held that the Title VII claim was not actionable because there was no allegation that any employee was targeted or subjected to treatment that other groups were not. The employees appealed the court’s order to the Ninth Circuit.

The Appellate Court Decision

On June 7, 2023, a Ninth Circuit panel vacated the district court’s dismissal. The panel held that music with sexually derogatory and violent content can constitute discrimination even if the music offended both men and women. In reaching this conclusion, the Ninth Circuit relied on a prior U.S. Supreme Court decision, wherein the Court stated, “it is no ‘defense for an employer to say it discriminates against both men and women because of sex.’” The Ninth Circuit went on to note that “Even if audible to all, lyrics loaded with such sexist slurs expose female employees to uniquely ‘disadvantageous terms or conditions of employment.’”

Consequently, the panel instructed the district court to reconsider the sufficiency of the employees’ complaint in light of two key principles: (1) auditory and visual harassment does not need to directly target a particular individual in order to give rise to a Title VII claim; and (2) the challenged conduct’s offensiveness to multiple genders is not a bar to stating a Title VII claim.

What Sharp Means For Employers

The Ninth Circuit’s ruling underscores the need for employers to monitor their workplaces in an effort to eliminate offensive conduct. Plaintiffs likely will contend that this decision has done  away with the “because of” requirement for Title VII claims and has turned Title VII into a “civility code,” which the U.S. Supreme Court previously opined was not the intent of Title VII.  It also can be expected that Plaintiffs will argue that California’s Fair Employment Housing Act should be interpreted in a manner consistent with the Sharp decision.