Fed up with hearing “very offensive” songs like Eminem’s “Stan” and Too $hort’s “B*job Betty” on the job, Stephanie Sharp and several other employees (including a male) filed a hostile work environment claim under Title VII against their employer.  Plaintiffs claimed they could not escape the music because it was “[b]lasted from commercial-strength speakers” that were mounted on forklifts and driven around the warehouse where they worked.  Sharp v. S&S Activewear, LLC, 2023 WL 3857491 (9th Cir. June 7, 2023).

Plaintiffs claimed the music encouraged male employees to make sexually graphic gestures and remarks and to openly share pornographic videos in the workplace.

A lower court dismissed the claim, relying upon what is sometimes referred to as the “equal opportunity harasser” defense, which some employers have argued should shield them from liability where there is evidence that employees outside the protected group have been subjected to the same or similarly objectionable behavior.  In short, the trial court found that the claim failed as a matter of law because the music was offensive to both men and women.

However, the Ninth Circuit reversed, squarely rejecting the “equal opportunity harasser” defense and holding that harassment need not be directly targeted at a particular plaintiff to support a harassment claim.  The court found that the repeated and prolonged exposure to music “saturated with sexually derogatory content” could constitute “music as harassment.”

Importantly, the result may be different under California’s anti-discrimination law, the Fair Employment and Housing Act (“FEHA”).  In 2006, the California Supreme Court held in the landmark Lyle v. Warner Bros. Television Prods. opinion that a fired female assistant who had worked in the writers’ room of the television show “Friends” and who complained of hearing lewd and offensive language and sounds and observing obscene gestures made by the writers did not have a viable sexual harassment claim because:

Here, the record discloses that most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace. Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA.

From a practical point of view, employers should renew their efforts to police the workplace and eliminate any visual or auditory materials that could be considered offensive. Employers should also train their employees, and especially supervisors, to refrain from saying, doing, or tolerating anything that could be construed as illegal harassment while encouraging employees to come forward with their complaints to HR as soon as they perceive something that could be harassing.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.