Sometimes music at work can be a welcome diversion. But not all songs favored by employees come from “The Sound of Music.” An employer’s obligation to keep its workplace free from harassment includes paying attention to what music your employees are exposed to while working.
Monster speakers, monster problems
Stephanie Sharp worked in S&S Activewear’s warehouse in Reno, Nevada. The facility was enormous — some 700,000 square feet. S&S allowed its managers and employees to play music in the warehouse. According to the employer, the music countered background noise and motivated the workforce. It was played through commercial-strength speakers located throughout the workplace. On some occasions, employees placed speakers on forklifts and drove the speakers around the workplace, “making it more difficult to predict — let alone evade — the music’s reach.”
Sharp contended that much of the music was sexually graphic, denigrated women, and described extreme violence against women. Examples included songs by rappers Eminem and Too Short. Sharp alleged that the music “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.” Despite repeated employee complaints, S&S took no action and defended the music as “motivational.” Eventually, Sharp and seven coworkers – six female and one male – sued S&S for creating and maintaining a sexually harassing workplace in violation of Title VII.
Offensive tunes and Title VII
Title VII requires employers to maintain workplaces that are free from sexual harassment and to take steps to stamp out sexually hostile or abusive conduct. To be unlawful, the complained behavior must be more than a one-off or isolated event; the offensive behavior must be severe or pervasive. If lyrics are gender -specific and sufficiently offensive, courts around the country have found that music in the workplace may rise to the level of unlawful sexual harassment.
Inasmuch as the music was played indiscriminately throughout the entire warehouse, S&S argued that, because it was not targeted at a particular employee, the music could not support a sexual harassment claim. Rejecting this argument, the court said “repeated and prolonged exposure to sexually foul and abusive music … falls within a broader category of actionable, auditory harassment that can pollute a workplace and violate Title VII.”
S&S’s “equal opportunity harasser” argument also went down in flames. S&S noted that both men and women had been offended and complained about the music played at work. (Recall that one of the eight named plaintiffs in the lawsuit was male.) The court held that an employer cannot avoid sexual harassment liability by creating and maintaining a workplace that is offensive, harassing and intolerable to all employees. Now a jury will decide whether the employer violated Title VII by giving managers and employees free rein for their music selection.
Listen to the music
We all understand that employers must monitor and police their workplace to make sure it is free of harassing behavior, and that when they become aware of any such harassing behavior, they must act promptly to end it. These same responsibilities apply to music being played by managers or employees in the workplace.
- Sharp et al v. S&S Activewear, LLC, No. 21-17138 (9th Cir. 6/7/23)
