MUSIC TO A PLAINTIFF’S LAWYER’S EARS – SEXUALLY GRAPHIC AND VIOLENT SONG LYRICS CAN CREATE A HOSTILE WORk ENVIRONMENT
Recently, in Sharp v. S&S Activewear, LLC, 2023 U.S. App. Lexis 14130, the United States Court of Appeals for the Ninth Circuit held that a group of plaintiffs stated a hostile work environment claim based on sex discrimination because the workplace was permeated daily with loud music containing sexually explicit, violent, and misogynistic lyrics.
The Ninth Circuit found the District Court's reasoning and the Company's position tone deaf. First, the Court held that exposing both men and women to a hostile work environment is not a Title VII defense. Second, it found the workplace harassment was "sufficiently severe or pervasive to alter the conditions of employment." Third, it held that sex discrimination need not be directed toward a particular plaintiff. Rather, "it is enough if such hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position." Fourth, the Sharp Court noted it was not a solo act, pointing to the Eleventh Circuit's decision in Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 803 (2010) (en banc).
Consequently, Sharp reversed the District Court's decision with this key refrain:
Whether sung, shouted, or whispered, blasted over speakers, or relayed face-to-face, sexist epithets can offend and may transform a workplace into a hostile environment that violates Title VII.
The implications of such a decision could be far reaching and might lead to courts and/or juries parsing musical lyrics to determine if they are "sexually offensive” and “misogynistic," or unoffensive "good time rock-n-roll." Regardless, Sharp offers some important takeaways:
Context matters – Listening to music that may be considered derogatory or obscene through headphones or in an enclosed office space is different from playing offensive music throughout an office or warehouse daily.
Do not ignore or minimize repeated complaints of allegedly offensive conduct or language. Investigating and taking corrective action is warranted.
Training on unlawful harassment in the workplace is critical.
As Eminem asks in his song "Who Knew?" "How much damage can you do with a pen?" – Sometimes, a lot.
This document is designed for general information only. The information presented in this document should not be construed to be formal legal or tax advice nor the formation of a lawyer/client relationship.
For more information on this and other topics, please contact Kevin via any of the channels listed below:
📧 kevin@kmckernan.com | 📞 718-317-5007