According to the Ninth Circuit Court of Appeals, sexually explicit music played in the workplace can create a hostile environment in violation of Title VII. Harp v. S & S Activewear, LLC, 69 F. 4th 974. Eight former employees (seven women and one man) charged the warehouse allowed "sexually graphic, violently misogynistic" music to be played loud such that it permeated the workplace. The workers also claimed that the music encouraged male employees to make sexually explicit remarks, engage in sexually graphic gestures, and the like. The defense was rejected that the music did not constitute discrimination since all employees were exposed to the music, and that both men and women were offended by it. The Eleventh Circuit has previously issued a similar ruling, and the Second Circuit has found that a hostile work environment be created where "sexually offensive comments and graffiti" were commonplace.
The lesson from these type rulings in that employers must police their workplace to maintain its appropriateness, and inappropriate behavior or speech that denigrates people on the basis of a protected class potentially create a legally actionable hostile environment claim regardless of whom it offends. The court particularly found fault that the employer continued to allow the music to be played because managers felt it motivated employees to work harder, and management had ignored complaints from employees related to the music.
This article is part of our February 2024 Newsletter.
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