Sharp v. S&S Activewear, LLC, 69 F.4th 974 (9^th Cir. 2023)

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 one male) filed a hostile work environment claim against their employer under Title VII.  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.  Plaintiffs claimed the music encouraged male employees to make sexually graphic gestures and remarks and to openly share pornographic videos in the workplace.

The district 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.”