At a workplace in Nevada, “sexually graphic, violently misogynistic” music from artists like Eminem and Too $hort “blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape.” Employees complained about it “almost daily.” But management brushed those complaints aside and defended the music as motivational. This went on for almost two years.
Then eight former employees sued. They claimed that routinely playing “sexually graphic, violently misogynistic” music throughout its warehouse created a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.
Yesterday, the Ninth Circuit Court of Appeals weighed in on “whether music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex.”
The short answer, according to the appellate court, is yes.
There’s a slightly longer explanation.
“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, the challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim.”
Let’s go back to yesterday’s post for some added context. Anyone who claims a hostile work environment must show that: (1) s/he belonged to a protected group, (2) s/he suffered unwelcome harassment, (3) the harassment was based on a protected class, (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and (5) the defendant “knew or should have known” and did nothing.
And, as I’ve said before, the Supreme Court has rebuffed any “defense for an employer to say it discriminates against both men and women because of sex.” That’s from Bostock v. Clayton County. “Instead of avoiding Title VII exposure, this employer doubles it.”
“Applying these core principles…lyrics loaded with such sexist slurs expose female employees to uniquely ‘disadvantageous terms or conditions of employment,'” reasoned the Ninth Circuit. The appellate court noted that its analysis aligns with the earlier decisions from other circuits, like this one, this one, this one, and this one.
I like “Stan” by Eminem, one of the songs about which the plaintiffs complained. But the employment lawyer in me says maybe don’t make it a practice to expose your employees to lyrics “detailing a pregnant woman being stuffed into a car trunk and driven into water to be drowned.” Instead, I suggest any number of songs from the Rocky IV soundtrack. They got Rocky to train in Siberia like a MF, defeat a Russian champion against all odds, and single-handedly end the Cold War.
Sure, you may get some odd looks from Gen Z in the workplace. But, if you play “War” by Vince Dicola as I walk up the courthouse steps, I’m leaving with a “W” — even at a case management conference.