Rap Music Can Create a Sexually Hostile Work Environment – for Both Women and Men

Even though both men and women were exposed to – and offended by – “sexually graphic, violently misogynistic” rap music, the U.S. Court of Appeals for the Ninth Circuit held that such music, played constantly and publicly throughout the warehouse, could constitute harassment based on sex.

Hostile Work Environment Harassment. Title VII prohibits employers from discriminating against employees because of their sex. Such discrimination includes a sexually hostile work environment (HWE), arising from multiple acts over a period of time that are so severe or pervasive that they alter the conditions of employment.

Background of the Case. In Sharp v. S&S Activewear, LLC, the employer permitted its managers and employees to play rap music that denigrated women and contained extremely offensive sexual lyrics. Both women and men were offended by the music. Management characterized the music as “motivational” and continued playing it for several years – until this lawsuit was filed. In its defense, the employer argued that there was no harassment because of sex because the music offended both men and women – a principle called “equal opportunity harassment” – meaning that there can be no discrimination where the offensive conduct is equally directed to everyone. The federal district court agreed, and dismissed the case. The employees then appealed the dismissal to the Ninth Circuit.

The Court’s Opinion. The Ninth Circuit found that “a workplace saturated with sexually derogatory content can constitute harassment ‘because of sex.’” Such content can come from “sexually foul and abusive music,” which the Ninth Circuit characterized as “actionable, auditory harassment that can pollute a workplace and violate Title VII.” In so holding, the Ninth Circuit noted that it was joining sister Circuits, such as the Eleventh (HWE based on crude and gender-derogatory radio programming), Second, Fourth, and Sixth.

The Ninth Circuit went on to note that male and female plaintiffs can coexist in the same Title VII action. It specifically rejected the “equal opportunity harasser” defense, noting that “an employer cannot evade liability by cultivating a workplace that is broadly hostile and offensive.” Rather “sexually charged conduct may simultaneously offend different genders in unique and meaningful ways.” In other words, the same conduct may have different – but still illegal – impacts on women v. men.

Lessons for Employers. As we discussed in our blog post on the federal district court’s dismissal of this case, employers should be proactive in addressing employee complaints about offensive conduct in the workplace – particularly if related to a protected characteristic like race or sex.