Stephanie Sharp worked in S&S Activewear’s ware- house in Reno, Nevada. S&S allowed its managers and employees to play music in the warehouse because it countered background noise and motivated the work- force. It was played through commercial-strength speakers located throughout the workplace, but employees sometimes placed speakers on forklifts and drove them around, “making it more difficult to predict – let alone evade – the music’s reach.”

Sharp contended that much of the music was sexually graphic, denigrated women, and described extreme violence against women. Examples included songs by rappers Eminem and Too Short. She also alleged the music “served as a catalyst for abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos.”

Despite repeated employee complaints, S&S took no action and defended the music as “motivational.” Eventually, she and seven coworkers-six female and one male sued S&S for creating and maintaining a sexually harassing workplace in violation of Title VII of the Civil Rights Act of 1964.

Title VII requires employers to maintain workplaces that are free from sexual harassment and to take steps to eliminate sexually hostile or abusive conduct. To be unlawful, the complained behavior must be not just a one-off or an isolated event but rather severe or pervasive. If lyrics are gender-specific and sufficiently offensive, courts around the country have found music in the workplace may rise to the level of unlawful sexual harassment.

Although the music was played indiscriminately throughout the warehouse, S&S argued the music wasn’t sexually harassing because it wasn’t targeted at a particular employee. Rejecting this argument, the court said that “repeated and prolonged exposure to sexually foul and abusive music ... falls within a broader category of actionable, auditory harassment that can pollute a workplace and violate Title VII.”

S&S’s “equal opportunity harasser” argument was also rejected. S&S noted both men and women had been offended and complained about the music. The court held an employer can’t avoid sexual harassment liability by creating and maintaining a workplace that’s offensive, harassing, and intolerable to all employees. Now a jury will decide whether the employer violated Title VII by giving managers and employees free rein for their music selection.

You must monitor and police your workplace to make sure it’s free of harassing behavior, and when you become aware of any harassing behavior, you must act promptly to end it. These responsibilities also apply to music being played by managers or employees. (Sharp et al. v. S&S Activewear, LLC, No. 21-17138 – 9th Cir. 6/7/23)

Charlie Plumb is an attorney in the Tulsa, Oklahoma office of McAfee & Taft. He can be contacted at charlie.plumb@mcafeetaft.com. This article is republished from the Upper Midwest Employment Law Letter, a monthly publication focusing on Iowa, Minnesota, Nebraska, North Dakota, and South Dakota.