Federal Appeals Court Explains How Explicit Music Can Contribute to Hostile Work Environment

Learn how offensive music affect work environment

Warning: This article contains sexually explicit language and discussions of violence from court rulings.

A federal appeals court recently provided a warning to employers about the risks of allowing explicit music to be played aloud at work. The court held that violent and misogynistic music could contribute to a hostile work environment claim. This ruling offers valuable lessons to employers and their human resources teams, highlighting the importance of adopting effective policies related to music in the workplace, as well as promoting diversity, equity, and inclusion.

Background

In Sharp v. S&S Activewear LLC, the plaintiffs were former employees of S&S Activewear and alleged that music played in the company’s warehouse created a hostile work environment. The company’s warehouse in Reno, Nevada, permitted its employees to play music while the employees worked, but the plaintiffs found the music highly offensive. 

The plaintiffs, consisting of seven women and one man, claimed that the music denigrated women and used offensive terms, contributing to a hostile work environment. The Ninth Circuit Court of Appeals (which covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington) discussed two examples by way of the songs by Too $hort and Eminem, which contained highly offensive lyrics that glorified prostitution and depicted extreme violence against women. Eminem’s song, for example, detailed a pregnant woman being stuffed into a car trunk only to be driven into the water to drown. 

The music was blasted from powerful commercial-grade speakers placed throughout the 700,000-square-foot warehouse, so it was nearly impossible to avoid hearing it. Certain employees even attached speakers to forklifts, making it even more difficult for employees to avoid its reach. The plaintiffs alleged that this music served as a catalyst for abusive behavior by male employees, who engaged in sexually explicit gestures, shouted obscenities, made explicit remarks, and openly shared pornographic videos. While the music was particularly demeaning toward women, some male employees also found it offensive.

Despite numerous complaints from employees, S&S management defended the music as motivational and continued playing it for nearly two years. Eventually, the plaintiffs filed a lawsuit alleging that the music and related conduct created a hostile work environment in violation of Title VII. However, the district court dismissed the case, ruling that the music’s offensiveness to both men and women and its audibility throughout the warehouse (thereby not specifically targeting one individual) nullified any potential discrimination.

The Ninth Circuit’s Ruling

On June 7, the Ninth Circuit reversed the trial court and reminded the lower-level court of two important considerations when it re-evaluates the case. First, harassment – whether aural or visual – need not be directly targeted at a particular individual in order to pollute a workplace and give rise to a Title VII claim. Second, even if the challenged conduct is offensive to multiple genders, this does not bar a Title VII claim. 

The Ninth Circuit unequivocally noted that “an employer’s status as a purported equal opportunity harasser provides no escape hatch for liability”. The appellate court advised that while the district court viewed the playing of the music “warehouse wide” as an indication of being gender neutral, it very well might support a finding of the music’s “invidious pervasiveness.”   

Even though the Ninth Circuit had not addressed the specific issue of music as harassment, it previously recognized Title VII redress for other auditory offenses in the workplace and for derogatory conduct to which all employees are exposed. In pulling from guidance from its own decisions and those in other circuits, the Ninth Circuit recognized “‘sexually graphic, violently misogynistic’ music as one form of harassment that can pollute a workplace and give rise to a Title VII claim.” 

The appellate court equated the sexually derogatory music to the explicit use of sexually degrading, gender-specific epithets used by actual employees or managers in the workplace. It chose not to distinguish between epithets spoken aloud versus played in music as two forms of “verbal conduct” that had “the purpose or effect of unreasonably interfering with an individual’s work performance.” 

Conformity with Other Federal Appeals Courts

The Ninth Circuit’s recent holding, at first blush, may seem to tread a new pathway providing employees with additional ammunition for litigation. But the factual allegations (grotesque conduct, management’s refusal to respond to complaints, and continued behavior for two years) fall in line with current Title VII jurisprudence. Specifically, the Ninth Circuit drew upon similar decisions handed down from the Second, Fourth, Sixth, and Eleventh Circuits, respectively.

For example, in Reeves v. C. H. Robinson Worldwide Inc., the Eleventh Circuit Court of Appeals (which covers Alabama, Florida and Georgia) allowed a female employee’s case to go to trial on claims alleging that her co-workers fostered a sexually hostile environment by, among other things, routinely playing “a crude morning show” from a central office radio and regularly singing “songs about gender-derogatory topics.” 

Similarly, the Fourth Circuit Court of Appeals (which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia) in Ocheltree v. Scollon Productions, Inc. held that male employees’ “sex-laden and sexist talk and conduct” amounted to sexual harassment of a company’s sole female employee, despite the fact that it could be heard by all employees and was just as offensive to men. 

Given these holdings from sister circuits, it would be a grave error to attribute the Ninth Circuit’s decision to West Coast ideological differences. 

Takeaways for Employers

So, what does this all mean going forward? Employers should understand the legal risks associated with allowing certain music to be played in the workplace. Each situation must be addressed based on this context, and as the Ninth Circuit has shown us, a holistic approach that involves looking at the situations from all angles (as opposed to just considering whether something is offensive to women or men) is likely better. 

As the interpretation of this body of law is steadily developing, there are always important lessons to be learned as new case law is published.
 

1. Promote an inclusive and respectful work environment: Ensure that your company’s policies and practices prioritize respect, diversity, and inclusion. Foster a workplace culture that values and upholds the rights and dignity of all employees, regardless of their gender.
2. Review and enforce appropriate music policies: Evaluate your company’s policy regarding the playing of music in the workplace. Clearly communicate guidelines on acceptable content to prevent the dissemination of sexually explicit, violent, or offensive music that could contribute to a hostile work environment. Consider implementing a ban on the open playing of music or other broadcasts and require employees to use personal headphones unless there is a safety or productivity concern. 
3. Respond promptly to employee complaints: Take all employee complaints seriously and investigate them quickly. Implement a robust reporting mechanism that allows employees to raise concerns without fear of retaliation. Address any reported instances of offensive behavior or music promptly and take appropriate disciplinary action, if necessary.
4. Provide training on diversity, inclusion, and sensitivity: Conduct regular training sessions to educate employees on topics such as diversity, inclusion, and sensitivity in the workplace. Offer guidance on appropriate behavior, language, and the impact of offensive music. By promoting awareness and understanding, you can help prevent discriminatory conduct and foster a more harmonious work environment.
5. Regularly assess and update policies: Continuously review and update your company’s policies to adapt to changing societal norms and legal requirements. Stay informed about relevant laws, regulations, and court decisions to ensure compliance and minimize the risk of legal disputes related to a hostile work environment.

Creating a respectful work environment is not only the right thing to do but also contributes to employee morale, productivity, and retention. By taking proactive measures to address potential issues related to offensive music, you can foster an inclusive and productive workplace culture where employees feel valued and respected.

Jonathan Crotty, Zack Anstett, and Jeremy Locklear are Employment Attorneys at Parker Poe in Charlotte and Raleigh, North Carolina.