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Music as Harassment – Will the Real Slim Shady please … sit down?

Have you ever wondered whether some hip-hop music, with its misogynistic, sexually graphic lyrics and frequent use of the “n-word,” could form the basis of a harassment claim if played in the workplace? If so, you now have an answer.

In Sharp v. Activewear, L.L.C., 69 F.4th 974 (9th Cir. 2023), the Ninth Circuit addressed the question of whether music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can create a hostile or abusive environment and constitute discrimination because of sex. The court held that it could.           

In Sharp, eight employees (seven women and one man) took offense to the company’s practice of blasting “sexually graphic, violently misogynistic” music throughout its 700,000 sq. ft. warehouse with commercial strength speakers. The music included Eminem’s “Stan,” which describes extreme violence against women, including stuffing a pregnant woman into the trunk of a car, a song by Too $hort that glorifies prostitution, and others that denigrated women and used words like “hos” and “bitches.” The employer contended the music was “motivational,” despite near daily objections.

Looking to other cases that found “environmental” harassment unlawful, such as cases involving crude radio programming, graffiti and shop talk, the court held that “sexually graphic, violently misogynistic” music is a form of harassment that can pollute a workplace and give rise to a claim under Title VII. In doing so, it rejected the employer’s contention that the music offended both male and female employees alike and was not directed at any particular individual. (The court did not address the employer’s contention that the music was “motivational.”) In other words, the music literally created an environment that was hostile to women.

Although it could have been worse – the company could have been piping Barbie Girl through those speakers, the outcome of the case should come as no surprise. The work environment consists of more than the person or persons working next to you and the offensive things they say or do. It includes all of your surroundings and what you see or hear. As is often the case, it also requires some common sense. If the conduct is objectively offensive and employees are complaining about it on a daily basis, in what world could it be considered “motivational” and not a potential legal problem?

Questions? Contact Alan Seneczko at (262) 560-9696 or by email.

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