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Music with Sexually Explicit Content May Create a Hostile Work Environment

Eight former employees of S&S Activewear sued the company for allowing managers and employees to routinely play “sexually graphic, violently misogynistic” music in its warehouse. The seven women and one male (referred to collectively as “Sharp”) assert music was "blasted" throughout the company's 700,000 square foot warehouse, overpowering the general factory noise and was "nearly impossible to escape." The songs played "denigrated women," referring to them as "hos" and "bitches." One Eminem song "described extreme violence against women, detailing a pregnant woman being stuffed into a car trunk and driven into the water to be drowned." With the music lyrics providing inspiration, male employees purportedly "pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos." Some male employees also found the music and conduct offensive. When employees complained, S&S management responded that the music was "motivational" and refused to end it for about two years.

Sharp filed a discrimination lawsuit against S&S, alleging the music and conduct violated Title VII. In seeking to dismiss the case, S&S argued the music and behavior did not constitute sex discrimination because both men and women were offended by it, and all employees heard the music. The district court dismissed the case, stating that the music and alleged conduct did not target any employee or group of employees and thus could not be the basis of a sex harassment claim.

The Ninth Circuit Court of Appeals disagreed and revived the claims. The court stated, "Workplace conduct is to be viewed cumulatively and contextually, rather than in isolation." In this work environment, the music  "infused the workplace with sexually demeaning and violent language, which may support a Title VII claim even though it offended men as well as women." Moreover, lyrics filled with misogynistic content subjected female employees to "uniquely disadvantageous terms or conditions of employment." The Ninth Circuit decision notes its alignment with similar holdings in the Eleventh, Second, Fourth, and Sixth Circuits on how sights and sounds permeating the work environment may violate Title VII.