On June 7, 2023, the United States Court of Appeals for the Ninth Circuit issued an opinion in Sharp v. S&S Activewear, L.L.C. (“S&S”), in which it confirmed that music played in the workplace can form the basis of a Title VII sexual harassment claim even when it offends both female and male employees and is not directed at a particular individual employee. Specifically, the issue in this case is whether music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment, and thus constitute discrimination because of sex. The Court’s answer is yes.
Title VII of the Civil Rights Act of 1964 – Federal Protection
Title VII of the Civil Rights Act of 1964 is one of the principal federal statutes prohibiting employment discrimination. It protects employees and applicants from discrimination based on race, color, religion, national origin, and sex (including gender, pregnancy, sexual orientation, and gender identity).
Title VII specifically prohibits discrimination in the terms and conditions of employment, including hiring, compensation, employment benefits, advancement, employment training, assignments, and termination of employment. Harassment and retaliation are also prohibited.
Title VII is enforced by the Equal Employment Opportunity Commission and applies to most private employers that have a minimum of 15 employees. If conduct or activity in the workplace creates a “hostile work environment,” this will give rise to a claim under Title VII.
The California Fair Employment and Housing Act – State Protection
The California Fair Employment and Housing Act (FEHA) provides similar protections at the state level. FEHA is the primary state statute prohibiting unlawful discrimination, harassment, and retaliation in the workplace based on statutorily protected characteristics such as age (40 and over), ancestry, color, creed, denial of family and medical care leave, disability (mental and physical), marital status, medical condition (cancer and genetic characteristics), national origin, race, religion, sex, and sexual orientation. FEHA’s anti-discrimination provisions apply to employers with five or more employees while all its anti-harassment provisions apply to employers with one or more employees.
Summary of Sharp v. S&S – An Employment Discrimination Action
Eight former employees, seven women and one man, brought a Title VII hostile work environment claim against their employer, apparel manufacturer S&S Activewear. Plaintiffs alleged that Defendant permitted its managers and employees to play “sexually graphic, violently misogynistic” music throughout its warehouse. This music then 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 largely demeaning toward women, some male employees also took offense.
Plaintiffs claimed that the music and related conduct constituted sexual harassment under Title VII. In response, S&S filed a motion to dismiss on the grounds that the challenged conduct did not constitute discrimination based on sex because all employees were exposed to it and both women and men were offended by it. A United States District Court in Nevada granted S&S’s motion to dismiss, reasoning that audibility throughout the warehouse and the music’s offensiveness to both genders invalidated any discrimination potential. However, the Court of Appeals vacated the district court’s decision on the following grounds: (1) whether aural or visual, harassment need not be directly targeted at a particular plaintiff to pollute a workplace and give rise to a Title VII claim; and (2) the challenged conduct’s offensiveness to multiple genders is not a certain bar to a Title VII claim.
On this basis, the Court held that music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination based on sex.
Need More Information?
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See Sharp v. S&S Activewear, L.L.C., --- F.4th --- (9th Cir. 2023).
See Cal. Gov’t Code §§ 12900 to 12996.