During my life, I have worked at a business where photographs of women in few or no clothes were pasted all over the walls in a boss’s office. I worked at another location where men used demeaning and vulgar language to talk about women or their sexual escapades. I didn’t like it, but as a man, I didn’t feel I had any recourse. In fact, the one time I did speak up I was criticized, even by the management of the organization.
What Happened at the S&S Warehouse
The workplace environment, as described by eight former employees, at the S&S Activewear warehouse in Reno, Nevada, was permeated with offensive music and behavior. Commercial-grade speakers blared out music like “Blowjob Betty” by Too $hort and “Stan” by Eminem which described a pregnant woman stuffed in a car trunk and the vehicle driven into water where the woman drowned. Sexually graphic and violently misogynistic songs were routine at S&S.
The music was allegedly the catalyst for male employees to pantomime sexually graphic gestures, yell obscenities, make sexually explicit remarks and share pornographic videos.
The women in the warehouse didn’t like the men’s behavior. Nor did they like the vulgar music. Some of the men in the warehouse didn’t like it either. One man is a plaintiff in the lawsuit.
Equal Opportunity Harassment is Not a Defense
The defendant claimed that the workplace conditions did not constitute sex harassment because the music was offensive to both men and women and no one individual or group (gender) was targeted.
Focusing on the blaring of music, the district court sided with S&S, ruling that unlawful harassment did not occur because the music offended both genders and did not target one of them.
The Court of Appeal overturned the district court. Sharp v. Activewear, L.L.C., 2023 U.S. App. LEXIS 14130 (9th Cir. June 7, 2023). In a case of first impression for the Ninth Circuit, the Court concluded that music with sexually derogatory and violent content played constantly and publicly throughout the workplace can foster a hostile or abusive environment constituting discrimination because of sex.
A defendant need not target an individual to violate discrimination laws. It is sufficient that the defendant’s hostile behavior pollutes the employee’s workplace making it more difficult to do the job.
Moreover, it is not a defense for an employer to claim its actions discriminate against both men and women equally. Even if audible to all workers, lyrics with sexist slurs expose females to disadvantageous terms or conditions of employment. The music may be particularly offensive to women.
The Court ruled that untargeted harassment affecting all workers does not rule out the possibility that both men and women may assert viable claims for sexual harassment. A male may assert a claim of sexual harassment along with female co-workers.
It appears that if I faced today what I faced earlier in my work life, I could sue for unlawful harassment. I am glad to see that day come. It is disturbing to be compelled to endure such behavior.
Effect on the Workplace
Title VII and the Fair Employment and Housing Act (“FEHA”) were never intended to be general laws of civility imposing certain behavior in the workplace. But the laws were intended to protect workers from behaviors that create a hostile work environment based on sex, race, religion and other protected classes. Vile language as described by S&S employees, whether couched as music or merely uttered, which demeans another person based on a protected class, is wrong and should not be tolerated in the workplace.
Employers should re-examine their training to recognize that a man bombarded with music that degrades women may assert a claim of harassment. The Court’s decision can be extended to other protected classes. A person of one ethnicity could assert a claim of unlawful harassment if bombarded with language or conduct that degrades another person’s ethnicity, nationality or race. A worker does not need to be a member of a particular protected class to assert a claim.
Do You Need More Information?
Do you need help drafting policies and procedures prohibiting unlawful discrimination and harassment? Do you need help training your employees, or responding to claims of unlawful discrimination and harassment? We are pleased to work with clients who want to improve their workplace culture and comply with these laws that protect all workers.