Can the playing of rap music in the workplace create a sexually hostile environment? Can it do so even when both men and women are offended by the lyrics? In Sharp v. S&S Activewear, the U.S. Court of Appeals for the Ninth Circuit answered both questions with a resounding yes.

According to the plaintiffs – seven women and one man – the employer created a sexually hostile work environment by allowing supervisors to routinely play “sexually graphic, violently misogynistic music” at the company’s warehouse. The songs, which included “Bl**job Betty” by Too $hort and “Stan” by Eminem, contain lyrics glorifying prostitution and describing violence against women.

(I confess to being a Sinatra fan and fail to see how such lyrics constitute music.)

The plaintiffs alleged that songs like these were continuously blasted from commercial-strength speakers throughout the warehouse. Despite repeated complaints about the music, management defended it as a “motivational tool.” The plaintiffs also claimed that male employees shared sexually pornographic videos, and made sexual hand gestures, body movements, and comments.

The plaintiffs filed suit in federal court in Nevada, alleging hostile environment discrimination, retaliation, and constructive discharge. The company promptly moved to dismiss the claims. Although the judge allowed most of the case to go forward, she dismissed the plaintiffs’ claim that the music created a sexually hostile work environment. According to the judge, the plaintiffs could not prove discrimination based on sex because the music was played warehouse-wide, all employees were subjected to it, both men and women found it offensive, and there were no allegations that it was targeted at any particular group of employees.

In a rather stinging rebuke of those rationales, the Ninth Circuit reversed the dismissal. As the court framed the issue, the question before it was 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.” In finding that it did, the Court first recognized that harassing conduct need not be targeted at a person or group to be discriminatory. The court next recognized that, although Title VII is not a “civility code” outlawing the use of any sexual language, context matters. As for the context alleged by plaintiffs, the appeals court concluded that “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.”

As for the district court’s dismissal of the music-based claims because men were equally offended by the lyrics, the Ninth Circuit characterized it as being based on an “equal opportunity harasser defense.” It then brusquely rejected such a defense, concluding that “an employer cannot find safe haven by embracing intolerable harassing conduct that pervades the work-place” and that affects both men and women. As the court concluded, to permit “an employer to escape liability because it equally harassed whites and blacks, or men and women, would give new meaning to equal opportunity. Rather than embrace such an absurd interpretation, we resolve that the music’s alleged offensiveness to both male and female employees is no obstacle to Sharp’s suit.”

It would be a mistake to discount these holdings as a function of “left-coast” liberality. For example, in Reeves v C. H. Robinson Worldwide, Inc., the U.S. Court of Appeals for the Eleventh Circuit – based in Atlanta, Georgia – held that a female employee could go to trial on claims that her co-workers fostered a sexually hostile environment by, among other things, “routinely playing a crude morning show from a central office radio and regularly singing songs about gender derogatory conduct.”  Relying on Reeves and other federal appellate opinions, the Ninth Circuit concluded that “whether sung, shouted or whispered, blasted over speakers or relayed face to face, sexually demeaning and offensive words expose female employees to uniquely disadvantageous terms and conditions of employment regardless of whether the conduct is targeted at one or all of them.”

The allegations in Sharp are extreme. They involve sexually graphic, violently misogynistic music being played on a nearly daily basis, on commercial-strength speakers, for more than a year and despite repeated complaints from male and female employees. But the Ninth Circuit’s holding is likely to be applied in a variety of less extreme contexts. At what point do songs, videos, or other forms of media cross the civility line and become actionable harassment? Rap songs are often released with edited versions so they can be played on FCC-regulated radio stations. Would the edited version of “Stan” be less harassing? Since hostile environment claims require conduct that would be harassing to a “reasonable employee,” will juries become the arbiters of whether a song is harassing in nature?

Obviously, each situation must be assessed based on its context. The lessons to be learned from Sharp are that the content of such media can be offensive to some, it does not matter whether the content is targeted at anyone, and the fact that it may offend men and women alike is not a defense.

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