MUSIC CAN LEAD TO LIABILITY FOR HARASSMENT
In today’s world it is common in many workplaces for employers to allow their employees to listen to music while at their desks, or even allow an employee to choose the music that plays throughout the entire workplace. However, a recent Ninth Circuit Court ruling underscores the necessity for employers to take additional steps to ensure that the music that employees are playing is suitable for the workplace.
In Sharp v. S&S Activewear, No. 21-17138 (Ninth Cir., June 7, 2023), the Ninth Circuit held that an employer who allows employees to play offensive music in the workplace can be liable for harassment. The plaintiffs in this case included seven women and one man, who alleged that their employer engaged in sexual harassment when it allowed employees to play music that the plaintiffs felt depicted violence against women and promoted misogynic attitudes. One song, “Stan” by the rapper Eminem, was cited as an example. The lyrics of the song tell the story of Stan, a man who stuffs a pregnant woman into the trunk of his car and then drives the car off a bridge into water causing the woman to drown.
Plaintiffs also noted that the employer allowed this offensive music to be blasted from the commercial speakers of the warehouse and the music could be heard throughout the entire workplace. Despite the plaintiffs’ repeated complaints to management on an almost daily basis, their concerns were consistently ignored and the offensive music continued for nearly two years. It was only when the threat of litigation loomed that management decided to change the station.
The Ninth Circuit dismissed the employer’s argument that the offensive music, not specifically directed at any particular individual or gender, couldn’t be classified as sexual harassment. The Ninth Circuit clarified that harassment of any kind does not need to be directed to one particular individual in order for it to “pollute a workplace and give rise to a Title VII claim.” Additionally, the defense of being an “equal opportunity harasser” was considered insufficient to absolve the employer from liability.
This case is a good reminder to employers that they have the obligation under the law to create a work environment that is free from harassment, and that is respectful and professional. That includes monitoring the work environment to ensure no harassment or other types of prohibited behavior is occurring, respond to complaints in a timely fashion, and train all employees — particularly managers — on workplace harassment avoidance. Employers should always consider the entirety of their workforce when making decisions regarding what is appropriate and inappropriate in the workplace.
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