The plaintiffs in Sharp were a group of employees (seven women and one man) of S&S Activewear, LLC. The employees complained on many occasions over a two-year period about “sexually graphic, violently misogynistic” music played through the employer’s warehouse. The music was played on commercial-strength speakers, and was so loud that it overpowered the operational noises of the business. Speakers were placed on forklifts and driven around the warehouse. The Ninth Circuit observed that the music, according to the employees’ allegations, was “impossible to escape.” S&S ignored the employees’ complaints, and took no steps to address the music, instead defending it as “motivational”.

The plaintiffs filed suit and alleged that the music violated Title VII. The district court granted the employer’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), because “both men and women were offended by the work environment.” The Ninth Circuit rejected the notion and reversed the district court, concluding that sexually derogatory music audible throughout the workplace can create a hostile work environment in violation of Title VII, and that male and female employees can coexist in the same Title VII action.

In determining that sexually derogatory music played for all employees to hear can form the basis of hostile work environment claims, the Ninth Circuit cited Oncale and noted that lyrics loaded with sexist slurs expose female employees to uniquely “disadvantageous terms or conditions of employment.” The Court also relied on decisions from the Second, Fourth, Sixth, Tenth and Eleventh Circuits concluding that “gender-derogatory” radio shows, and other “sights and sounds that pervade the work environment” may constitute a hostile work environment under Title VII, as they force a member of a protected group to endure pervasive, derogatory language. Two things to note in the Court’s analysis: the offensive content included gender-based derogatory content, and its general publication throughout the workplace rendered it “pervasive” as required to state a claim for a hostile work environment. The Court noted that such content can “pollute a workplace” and give rise to a Title VII claim. The Court rejected the employer’s insistence that the fact that the music was played throughout the warehouse rendered it neutral, instead finding that fact to provide evidence of pervasiveness.

Oncale and Bostock provide support for the Court’s conclusion that male and female employees can coexist in a Title VII action. The Supreme Court in Oncale concluded that Title VII’s prohibition against discrimination “because of sex” protected men as well as women. In Bostock, the Supreme Court concluded that it is no defense for an employer to say it discriminates against both men and women because of sex. The Ninth Circuit quoted Bostock: “Instead of avoiding Title VII exposure, this employer doubles it.” Relying on this authority the Ninth Circuit refused to “countenance” the employer’s argument that it is “an equal opportunity harasser.” The fact that the workplace was “broadly hostile and offensive” does not offer “boorish” employers a free pass to discriminate on the basis of gender.

The Sharp court provides an interesting analysis of the tension in applying Title VII, and preventing it from expanding into a general civility code, as cautioned by the Supreme Court in Oncale. It is also important to note the procedural posture of the case in analyzing this tension: the case was at the Rule 12(b)(6) phase, and the issue was only whether the plaintiffs stated a claim. It was important to the Court that the plaintiffs had alleged that the music included lyrics that denigrated women, used gender-based pejoratives, glorified prostitution, and advocated violence against women. The gender-based nature of the content, plus the pervasiveness of the music, was enough to take the claim beyond the realm of a civility breach.

The Sharp decision also provides interesting precedent regarding discrimination against both men and women, following up on the Supreme Court’s analysis in Bostock and Oncale. The district court found it fatal that a male employee was included as a plaintiff, but the Ninth Circuit disagreed. Notably, the Ninth Circuit declined to “weigh the relative strength” of the male employee’s claims. But the holding is important nonetheless – Title VII protects both men and women, and can do so at the same time and in the same complaint.

The Sharp decision serves as a reminder that employers should not tolerate a hostile work environment at all. While Title VII is not intended as a code of civility, tolerating generally toxic workplace conditions can create liability under Title VII. It is not wise for an employer to place itself in a position of evaluating whether content or conduct offends a particular group (or all groups, providing some kind of liability shield). Further, Sharp serves with Oncale and Bostock as a reminder that Title VII protects employees of all genders, gender identities, and sexual preferences. Indeed, perhaps the most interesting part of the case is the plaintiffs’ assertion that the employer ignored complaints from the employees and defended the offensive music. The employees made it clear that they were, in fact, offended, and the employer ignored the opportunity to avoid liability, exposing itself to Title VII claims from the employee group. Sharp reminds us that a professional environment goes a long way towards preventing harassment and discrimination in the workplace.

Patricia Collins is a Partner and Employment Law Chair with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on employment, commercial litigation and health care law. Patricia Collins can be contacted at 215.230.7500 ext. 126.