Contributors

Jennifer Woo Burns

Of Counsel

Background music is often a ubiquitous element of a workplace environment, especially in the retail space, where businesses seek to create a positive mood for customers and employees. However, as illustrated recently in the case Sharp v. S&S Activewear, L.L.C., No. 21-17138, 2023 WL 3857491, (9th Cir. June 7, 2023), the 9th Circuit Court of Appeals ruled that music with explicit lyrics can create a sexually harassing hostile work environment, even though men and women were equally exposed. This case for hostile work environment harassment was brought by eight employees (seven women and one man) who worked in a large warehouse. The employer allowed employees to play music with sexually graphic and violent misogynistic lyrics, and as the music blared throughout the whole warehouse through commercial-grade peakers, it was very difficult to avoid hearing it. Although the lyrics were primarily explicit and demeaning towards women, who were about half of the employee population in the warehouse, there were some male employees who also found It offensive. Despite receiving complaints almost daily from employees about the music, the employer continued to allow it, claiming that it was motivational.

The District Court dismissed the suit on the grounds that the music did not target particular employees, but that both men and women were offended. The 9th Circuit disagreed, stating that harassment need not be directly targeted at a particular plaintiff in order to poison a work environment and that the conduct’s offensiveness to multiple genders does not bar a claim for unlawful harassment. The case was therefore remanded back to the trial court with this guidance.

In this case, it was bad enough that this employer appeared to not adequately assess the work environment for the pervasive offensive music, but it was even worse that the employer disregarded frequent complaints about the music. As such, this is a cautionary reminder that legally actionable hostile work environments can be broadly drawn and need not target a particular gender. Supervisors and managers should be continually trained to maintain their sensitivity to potential work environment risks and properly respond to complaints.