Ninth Circuit Forces Employer To Face The Music, Finds Sexist/Racist Music-Blasting Hits A Sour Note (US)

• Jurisdiction: United States,Federal
• Law Firm: Squire Patton Boggs LLP
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Trials & Appeals & Compensation, Music and the Arts
• Author: Ms Laura Lawless
• Published date: 15 June 2023

Squire Patton Boggs Labor & Employment Partner Laura Lawless and Summer Associate Esther Gold cover a recent opinion from the United States Court of Appeals for the Ninth Circuit addressing the extent to which sexually offensive music played in the workplace may violate Title VII of the Civil Rights Act of 1964.

"These tunes are off the hook!"

"Yeah....well...don't you think the lyrics are a bit....much for work? No? Not even the one about the man stuffing a pregnant woman in a trunk and drowning her?"

"Nah - I mean, these songs are super offensive, but, like, men and women are both really disgusted by them, so it's all good!"

That is the gist of the defense advanced by apparel manufacturer, S&S Activewear, in response to a lawsuit filed by eight former employees (seven women, one man) alleging that S&S's practice of blasting "sexually graphic, violently misogynistic" music through commercial-strength speakers throughout its 700,000 sq. ft. warehouse in Reno, Nevada created a sexually hostile work environment. Not content merely to broadcast sexist serenades denigrating women as "hos" and "bitches" and glorifying violence against women over the loudspeaker, at times employees also placed the speakers on forklifts and drove them around the warehouse, making it impossible for employees to escape the unpalatable polyphony. Swept up by the sexualized soundtrack, male employees allegedly pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks and openly shared pornographic videos in time with the music. Despite "almost daily" complaints from employees for nearly two years, S&S defended the abhorrent aural assault as "motivational."

After receiving notices of right to sue from the Equal Employment Opportunity Commission (EEOC), the plaintiffs filed suit, alleging the music created a sexually hostile work environment in violation of Title VII, 42 U.S.C. ' 2000e-2(a)(1). S&S moved to dismiss the complaint, arguing the carnal cacophony's "offensiveness to both men and women and audibility throughout the warehouse nullified any discriminatory potential." The district court was in a-chord with S&S and concluded that, because "both men and women were offended by the work environment," the employees could not prove that S&S created a hostile or abusive environment "because of sex," as required by Title VII. In fact, the district court was so convinced that S&S's "equal-opportunity-harasser" theory doomed plaintiffs' Title VII claim, it...