Sharp v. S&S Activewear


In Sharp v. S&S Activewear, LLC (Case No. 21-17138; 6/7/23), the Ninth Circuit Court of Appeals reversed the dismissal of a sex harassment case brought under Title VII that was based on an employer’s constant playing of rap music throughout the warehouse that contained sexually graphic lyrics. The district court dismissed the lawsuit on the grounds that the case was brought by both women and men, and that music which was equally offensive to both genders did not violate Title VII. In reversing the district court’s dismissal order and reinstating the lawsuit, the Ninth Circuit rejected the so-called “equal opportunity harasser” defense, and held that the plaintiffs’ allegations were sufficient to state a sex harassment claim even though the challenged conduct was offensive to both men and women.

In reaching this conclusion, the Court made several important rulings which are applicable in all workplace harassment cases. First, “harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim.” Second, “[a]n employer’s ‘status as a purported “equal opportunity harasser” provides no escape hatch for liability.’” Although the Court reiterated the well-settled principle that the alleged harassment must be “severe or pervasive to alter the conditions of employment” to be actionable, it also emphasized that it is sufficient “’if such hostile conduct pollutes the victim’s workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.’” By comparison, “’simple teasing, offhand comments, and isolated incidents” generally do not violate Title VII.

The offensive, violent and sexually demeaning lyrics of the music challenged by the plaintiffs was determined to be so pervasive as to create a hostile work environment even if it offended both men and women. The Court relied on cases from other Circuits which upheld harassment claims based on radio programming played in the office, even though the offensive words were not directed at the plaintiff. The Court found past precedent recognized that “’sexually graphic, violently misogynistic’ music as one form of harassment that can pollute a workplace and give rise to a Title VII claim.“ “Whether sung, shouted, or whispered, sexist epithets can offend and may transform a workplace into a hostile environment that violates Title VII.”

Rejecting the defendant’s “equal opportunity harasser” defense, the Court made it clear that an employer “cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace.” Further, “an employer cannot evade liability by cultivating a workplace that is broadly hostile and offensive.” The Court concluded that “the music’s alleged offensiveness to both male and female employees” is not an obstacle to the plaintiffs’ lawsuit.

Although this case is based on generally settled legal principles, it is the first Ninth Circuit case that considered a sex harassment claim in the context of music played in the workplace. It should be a wake-up call for employers that allow or promote broadcasting music at work with sexually or racially graphic lyrics. The Court’s ruling is not necessarily limited to offensive music played at work. Broadcasting other potentially offensive content, such as certain talk radio or television news programs, may also give rise to harassment claims. Further, although the case concerned alleged violations of Title VII, the Court’s ruling should be equally applicable to FEHA claims brought under California state law.

Jeff Fuchsman