In a case that reminds us that derogatory content can offend even if it's popular, the Ninth Circuit Court of Appeals recently held in Sharp v. S&S Activewear, LLC ("Sharp") that music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can create a hostile or abusive environment, constituting sexual discrimination.
The case involved several former employees who complained that their company played explicit songs by the artist Too $hort which contained, "highly offensive" lyrics that "glorified prostitution" and "Stan" by Eminem which violently details a pregnant woman being forced into a car trunk and driven into water to be drowned. These songs were played regularly through commercial-strength speakers. In some instances, the speakers were put on forklifts and driven around the warehouse. The complaining employees alleged that the music encouraged abusive conduct by male employees.
Importantly — despite receiving "almost daily" complaints, S&S' management and employees embraced the music, calling it motivational, and continued to allow it to be played until the complaints escalated into a lawsuit.
After initially losing at the lower court level on the ground that the music was equally offensive to all genders, the federal Court of Appeals ultimately held that "sexually graphic, violently misogynistic" music constitutes workplace harassment and can serve as the basis for a Title VII claim.
What's the lesson here? First — try to be thoughtful about the environment created at work. Just because a song is popular does not insulate it from the fact that it might be offensive. Enjoy at home, do not impose at work. And – perhaps more importantly – listen to the complaints!!! It seems like the company here had a great opportunity to avoid this lawsuit if they had responded to the "daily" complaints by changing the playlist.
Our Labor and Employment Group at Shulman Rogers specializes in navigating the complex intricacies of employment law. We assist employers and businesses establishing protocols, policies and trainings that not only minimize the risk of litigation but also foster a healthy, inclusive and productive work environment. If you would like assistance with drafting a policy or are interested in scheduling a training session, please reach out to us.
The full opinion of Sharp v. S&S Activewear, LLC is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
