Question: One of my employees likes to listen to edgy and suggestive music at her desk, saying this makes her more productive. Can I tell her to stop?
Answer: Yes, you can tell this employee to stop listening to such music at work. Employers can and should adopt workplace rules to ensure a safe and harassment free work environment. Although many people associate workplace sexual harassment with unlawful physical, visual, or verbal conduct, a recent case highlights that sexually derogatory music audible throughout the workplace may result in liability for sexual harassment.
Under federal law, an employee who asserts a claim for sexual harassment hostile work environment must show (1) the work environment was objectively and subjectively offensive, (2) the alleged harassment was based on gender, and (3) the alleged conduct was either severe or pervasive. Offensive conduct is not automatically “discrimination or harassment because of sex” merely because it includes sexual content or connotations. Teasing, offhand comments, and some isolated incidents generally will not amount to discrimination or harassment unless the employee can show that it was based on sex, offensive, and severe or pervasive.
A recent federal case confirmed that music in the workplace can form the basis of a sexual harassment hostile work environment claim under Title VII of the Civil Rights Act of 1964. In Sharp v. S&S Activewear, LLC, seven female employees and one male employee sued their employer alleging that S&S created an unlawful hostile work environment by permitting its managers and employees to routinely play “sexually graphic, violently misogynistic” music, including songs that denigrated women and described extreme violence against women. The music was “blasted from commercial-strength speakers placed throughout the warehouse” where the employees worked. The employees alleged “the music served as a catalyst for abusive conduct by male employees, who 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 roughly half of the warehouse’s workforce, some male employees also took offense. Despite “almost daily” complaints, S&S management defended the music as motivational and continued playing it for nearly two years.
S&S filed a motion to dismiss the lawsuit. The district court granted the motion, reasoning that the music’s offensiveness to both men and women and audibility throughout the warehouse cancelled any discriminatory potential. The district court held that because both men and women were offended by the work environment, the employees could not prevail on a hostile work environment claim.
The Ninth Circuit Court of Appeals reversed the decision, holding that 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. The Ninth Circuit Court sent the case back to the district court with instructions to reconsider the case based on two key principles. First, harassment, whether aural or visual, need not be directly targeted at a particular employee in order to pollute a workplace and give rise to a hostile work environment claim. Second, the fact that conduct is offensive to multiple genders does not bar a claim for hostile work environment harassment.
This case highlights the importance of monitoring workplace behavior to ensure employees are not subjected to harassment or discrimination, or a hostile work environment, because they are a member of a protected group.