October 2 Tip of the Week

“What Happened to Muzak”

In today’s day and age of streaming services, for both music and video, Muzak – the traditional form of elevator music that was prevalent at one time, has been replaced with employee’s playlists on Spotify, Amazon Music, and other services.  Given the ability of employees to play their own music that embodies their own tastes and sensibilities, employers must consider what steps to take to determine whether the music that the employee chooses is suitable for the workplace.  Much like the cases of old that held that explicit calendars that showed, most typically, women in various stages of undress were discriminatory and created a hostile work environment, a recent Ninth Circuit case has determined that an employer who allows employees to play offensive music in the work environment can be liable for harassment. 

            In Sharp v. S&S Activewear, No. 21-17138 (Ninth Cir., June 7, 2023), the Ninth Circuit Court of Appeals vacated the dismissal by a lower court of a claim of sexual harassment by eight plaintiffs against their employer.  The plaintiffs, which include seven women and one man, alleged that their employer engaged in sexual harassment when it permitted employees to play music that they felt depicted violence against women and misogynistic attitudes.  An example of a song that they felt was offensive was “Stan” by Eminem, which recounts the story of a man, Stan, stuffing a pregnant woman into the trunk of his car and driving the car into the water where the woman drowned.  This music was “blasted” from commercial speakers in the warehouse and could be heard in the background throughout the employer’s operation.  The plaintiffs complained to the management “almost daily” regarding the music, but their complaints fell on deaf ears.  In fact, management defended the choice of music and allowed it to continue for nearly two years.  The station was only changed after the threat of litigation was made. 

            In reversing the lower court’s dismissal of the plaintiffs’ Title VII complaint, the Ninth Circuit rejected the argument that, because the music was offensive to both men and women and was heard throughout the work environment (meaning it was not directed toward one individual or one gender), it could not constitute sexual harassment.  In rejecting these arguments, the Ninth Circuit Court of Appeals specifically stated that harassment of any kind does not need to be directed to one particular plaintiff in order to “pollute a workplace and give rise to a Title VII claim.”  The Ninth Circuit further stated that the defense that the employer was “an equal opportunity harasser” engaging in conduct offensive to multiple genders is not sufficient to insulate the employer from liability for harassment.             

What does this mean for employers?  This case is a reminder to employers that they are responsible for creating a work environment that is free from harassment and that is respectful and welcoming to all.  Allowing one group of employees who enjoy a certain type of music that can be viewed as offensive to others, particularly when there have been complaints about that music, is not acceptable.  Employers, when monitoring conditions in the workplace, must take a global approach and consider all members of the workforce.  If you have questions regarding complaints of harassment or other compliance issues, myHRcounsel is here to assist you.