A panel of the Ninth Circuit Court of Appeals recently vacated a district court's dismissal for failure to state a claim of a Title VII sexual harassment against an apparel maker.
The Court said that the district court erred in rejecting the employees' hostile work environment claim as incurable and legally deficient because the music at the business allegedly infused the workplace with sexually demeaning and violent language that might support a Title VII claim—even if it offended men as well as women.
Eight former employees claimed that the employer permitted its managers and employees to routinely play "sexually graphic, violently misogynistic" music throughout its warehouse. Was this sexual harassment?
Background
The eight plaintiffs were former employees—seven women and a man. They alleged that the employer permitted its managers and employees to routinely play "sexually graphic, violently misogynistic" music throughout its 700,000-square-foot warehouse. The songs' content denigrated women and used offensive terms and contained "very offensive" lyrics that "glorifie[d] prostitution."
Blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape. Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict—let alone evade—the music's reach. Moreover, the plaintiffs said that the music allegedly served as a catalyst for abusive conduct by male employees: they frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos. Although the music was particularly demeaning toward women, who comprised about half of the warehouse's workforce, some male employees also took offense. Despite "almost daily" complaints, the employer defended the music as motivational and stood by its playing for nearly two years, until litigation loomed.
The plaintiffs filed suit, alleging that the music and related conduct created a hostile work environment in violation of Title VII. The district court granted the employer's motion to dismiss, reasoning that the music's offensiveness to both men and women and audibility throughout the warehouse nullified any discriminatory potential.
“Context Matters,” The Ninth Circuit Says
In her opinion, Judge M. Margaret McKeown explained that a plaintiff bringing a hostile work environment claim must show discrimination by an employer on account of membership in a protected group under 42 U.S.C. § 2000e-2(a)(1). The offensive conduct must be "sufficiently severe or pervasive to alter the conditions of employment." Notably, individual targeting isn’t required to establish a Title VII violation. It’s enough if such hostile conduct “pollutes the victim's workplace,” making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position,” the judge wrote, quoting a 1994 decision.
Context matters, Judge McKeown explained. Workplace conduct is to be viewed cumulatively and contextually, rather than in isolation. This approach makes common sense in order to screen out one-off, isolated events and yet benchmark conduct in the context of a specific workplace. The judge noted that objectionable conduct isn’t "automatically discrimination because of sex merely because the words used have sexual content or connotations,” quoting a Supreme Court case. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) won’t amount to discrimination. However, a boorish and generally hostile workplace doesn’t shield against Title VII liability. The Supreme Court has made clear that it is no "defense for an employer to say it discriminates against both men and women because of sex."
Applying these principles, the Court of Appeals concluded that the district court erred in rejecting the plaintiffs’ hostile work environment claim as incurable and legally deficient. More than offhand foul comments, the music at the employer allegedly “infused the workplace with sexually demeaning and violent language, which may support a Title VII claim even if it offended men as well as women.”
Sexually Derogatory Music Audible Throughout the Workplace Can Create a Hostile Work Environment
A workplace saturated with sexually derogatory content can constitute harassment "because of sex." Even if audible to all, Judge McKeown found that lyrics loaded with such sexist slurs expose female employees to uniquely "disadvantageous terms or conditions of employment." Thus, the sort of "repeated and prolonged exposure to sexually foul and abusive music" that the plaintiffs alleged falls within a broader category of actionable, auditory harassment that can pollute a workplace and violate Title VII.
The EEOC guidelines broadly define "[h]arassment on the basis of sex" to include "verbal . . . conduct of a sexual nature" that "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."
Judge McKeown explained that the Ninth Circuit has applied parallel principles to hostile work environment claims premised on race discrimination. Likewise, sexually graphic, violently misogynistic music is one form of harassment that can pollute a workplace and give rise to a Title VII claim.
Although the district court interpreted the "warehouse wide" playing of music as an indication of neutrality, this fact may better reflect the music's invidious pervasiveness. Because the employer's management was unreceptive to complaints, the plaintiffs were forced to tolerate the music and the toxic environment as a condition of continued employment. And, even if the ubiquitous music was not (and need not have been) targeted toward any particular woman, female employees allegedly experienced the content in a unique and especially offensive way. Whether sung, shouted, or whispered, blasted over speakers or relayed face-to-face, sexist epithets can offend and may transform a workplace into a hostile environment that violates Title VII.
Male and Female Plaintiffs Can Coexist in the Same Title VII Action
The judge also noted that the U.S. Supreme Court categorically held that "Title VII's prohibition of discrimination 'because of . . . sex' protects men as well as women."
As a practical matter, it should be no surprise that sexually charged conduct may simultaneously offend different genders in unique and meaningful ways, the judge opined. Thus, in general terms, a male employee may bring a hostile work environment claim alongside female colleagues.
An employer can’t evade liability by cultivating a workplace that is broadly hostile and offensive. Citing the Eleventh Circuit, Judge McKeown explained that "Title VII does not offer boorish employers a free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate profanity as well." Concrete incidents of sex discrimination shouldn’t drown in a sea of incivility, the judge wrote.
Accordingly, the Court of Appeals held that the district court improperly dismissed the plaintiffs’ music claim. The decision was vacated. Sharp v. Activewear, L.L.C., 69 F.4th 974 (Ninth Circuit Court of Appeals 2/9/23).
Bottom Line
Employers should be aware that a workplace saturated with sexually derogatory content can constitute harassment "because of sex." In addition, an employer can’t evade liability by cultivating a workplace that is broadly hostile and offensive.