Squire Patton Boggs Labor & Employment Partner Laura Lawless and Summer Associate Esther Gold cover a recent opinion from the United States Court of Appeals for the Ninth Circuit addressing the extent to which sexually offensive music played in the workplace may violate Title VII of the Civil Rights Act of 1964.

“These tunes are off the hook!”

“Yeah….well…don’t you think the lyrics are a bit….much for work? No? Not even the one about the man stuffing a pregnant woman in a trunk and drowning her?”

“Nah – I mean, these songs are super offensive, but, like, men and women are both really disgusted by them, so it’s all good!”

That is the gist of the defense advanced by apparel manufacturer, S&S Activewear, in response to a lawsuit filed by eight former employees (seven women, one man) alleging that S&S’s practice of blasting “sexually graphic, violently misogynistic” music through commercial-strength speakers throughout its 700,000 sq. ft. warehouse in Reno, Nevada created a sexually hostile work environment. Not content merely to broadcast sexist serenades denigrating women as “hos” and “bitches” and glorifying violence against women over the loudspeaker, at times employees also placed the speakers on forklifts and drove them around the warehouse, making it impossible for employees to escape the unpalatable polyphony. Swept up by the sexualized soundtrack, male employees allegedly pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks and openly shared pornographic videos in time with the music. Despite “almost daily” complaints from employees for nearly two years, S&S defended the abhorrent aural assault as “motivational.”

After receiving notices of right to sue from the Equal Employment Opportunity Commission (EEOC), the plaintiffs filed suit, alleging the music created a sexually hostile work environment in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). S&S moved to dismiss the complaint, arguing the carnal cacophony’s “offensiveness to both men and women and audibility throughout the warehouse nullified any discriminatory potential.” The district court was in a-chord with S&S and concluded that, because “both men and women were offended by the work environment,” the employees could not prove that S&S created a hostile or abusive environment “because of sex,” as required by Title VII. In fact, the district court was so convinced that S&S’s “equal-opportunity-harasser” theory doomed plaintiffs’ Title VII claim, it denied plaintiffs leave to amend their complaint because it found the deficiency incurable.

The employees appealed, asking the Ninth Circuit Court of Appeals to “consider 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.” On June 7, 2023, in Sharp et al. v. S&S Activewear, L.L.C., No. 21-17138 (9th Cir. Jun. 7, 2023), the Ninth Circuit answered this question in the affirmative and reversed the order of dismissal.

Finding support from decisions reached in similar cases by the Second, Fourth, Sixth and Eleventh Circuit Courts of Appeals, the Court opined that, even if the opprobrious orchestrations had not been targeted toward any particular woman, female employees barraged by the derogatory din nevertheless could experience the content “in a unique and especially offensive way.” The Court continued: “[S]exually charged conduct may simultaneously offend different genders in unique and meaningful ways.” Blaring the misogynist melodies throughout the entire warehouse spoke to the “invidious pervasiveness” of the sex-based misconduct. As the sexually charged conduct was alleged to be severe and pervasive, the Ninth Circuit concluded the plaintiffs had sufficiently stated a cause of action for sex-based harassment.

The Court drew parallels between the sex discrimination alleged against S&S and its precedent involving claims of racial harassment. In McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004), the Court held that a Black employee whose work environment was permeated by racial hostility—routinely hearing racial insults and seeing racial graffiti—sufficiently alleged a claim of race-based harassment, even though the hostility was directed at and experienced by both Black and white employees. Just as allowing an employer to “escape liability because it equally harassed whites and Blacks would give a new meaning to equal opportunity,” McGinest, 360 F.3d at 1114-16, so too would absolving employers of liability if they “equally” harassed men and women.

The Sharp decision is an important reminder that there truly is no such thing as an equal opportunity harasser. Forgive our preaching to the choir, but “we make everyone equally uncomfortable!” is not the own S&S thought it was, and it shouldn’t be the refrain of other employers either. Nor should any employer ignore two years of near-daily complaints. Although the Ninth Circuit reversed dismissal, giving plaintiffs a chance to prove their case and S&S an opportunity to defend its actions, S&S still has to explain why it failed to modulate its motivational measures even after hundreds of objections from workers. Whatever led S&S’s managers to assume at the outset that their ubiquitous euphony was “motivational,” several hundred comments to the contrary should have made them change their tune. We’ll be sure to update the blog if there is any reprise.