Stephanie Sharp and seven other plaintiffs in this action are former employees of apparel manufacturer S&S Activewear. Seven are women and one is a man.
Sharp alleges that S&S permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its 700,000-square-foot warehouse in Reno, Nevada. According to Sharp, the songs’ content denigrated women and used offensive terms “very offensive” lyrics that “glorifie[d] prostitution” extreme violence against women.
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.
In turn, the music allegedly served as a catalyst for abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos. Although the music was particularly demeaning toward women, who comprised roughly half of the warehouse’s workforce, some male employees also took offense.
Despite “almost daily” complaints, S&S management defended the music as motivational and stood by its playing for nearly two years, until litigation was filed.
Sharp eventually filed suit, alleging that the music and related conduct created a hostile work environment in violation of Title VII. The district court granted S&S’s motion to dismiss and denied leave to amend the music claim, reasoning that the music’s offensiveness to both men and women and audibility throughout the warehouse nullified any discriminatory potential. The court countenanced S&S’s argument that the fact that “both men and women were offended by the work environment” doomed Sharp’s Title VII claim.
The 9th Circuit (with presides over California and other western states) reversed in the published case Sharp et al. v. S&S Activewear, L.L.C., – No. 21-17138 (Jun. 7, 2023).
The trial court held that Sharp failed to state an actionable Title VII claim because there was no allegation “that any employee or group of employees were targeted, or that one individual or group was subjected to treatment that another group was not.” Because the music offended men and women alike, the district court reasoned, it could not be the basis of a sexual harassment claim.
However, the 9th Circuit noted that the offensive conduct must be “sufficiently severe or pervasive to alter the conditions of employment.” Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020). Notably, individual targeting is not required to establish a Title VII violation. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 687 (9th Cir. 2017). “It is enough,” it has held, “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.” Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994).
And context matters. “Workplace conduct is to be viewed cumulatively and contextually, rather than in isolation.” This approach makes common sense in order to screen out one-off, isolated events and yet benchmark conduct in the context of a specific workplace. Objectionable conduct is not “automatically discrimination because of sex merely because the words used have sexual content or connotations.”
“Applying these core principles, we conclude that the district court erred in rejecting Sharp’s hostile work environment claim as incurable and legally deficient. More than offhand foul comments, the music at S&S allegedly 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.”
“Although we have not before addressed the specific issue of music-as-harassment, this court and our sister circuits have recognized Title VII redress for other auditory offenses in the workplace and for derogatory conduct to which all employees are exposed. The EEOC, which filed an amicus curiae brief on behalf of Sharp, endorses this position. Emphasizing this appeal’s impact on the future ‘ability of the EEOC and private parties to enforce Title VII,’ the agency agrees 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.’ “
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