The type of music employers play at the workplace could form the basis of a sex harassment claim under Title VII of the Civil Rights Act of 1964, according to a recent decision of the Ninth Circuit in Sharp v. S&S Activewear, LLC. The Sharp opinion presents two key lessons for human resources professionals and employers.

First, the fact that the music was not directed at the plaintiffs (all employees could hear it) was not fatal to the claim. In other words, the “atmospherics” of a workplace can be actionable discrimination if they are so pervasive as to negatively affect the work environment. Second, that both men and women found the music offensive did not preclude liability for sex-based discrimination. As the Court put it, “an employer’s status as a purported ‘equal opportunity harasser’ provides no escape hatch for liability.”

The workplace music case

Stephanie Sharp and seven colleagues sued their former employer, an apparel manufacturer, alleging that they were subjected to sex-based harassment in violation of Title VII when managers and employees “routinely” played “‘sexually graphic, violently misogynistic’ music through its 700,000-square-foot warehouse.”

The plaintiffs alleged that the music was played on commercial-strength speakers and overpowered operational noise in the warehouse. Sharp and another plaintiff also alleged that they both complained to the same HR manager regarding the music on separate occasions and to their supervisor. According to Sharp, the HR manager told her to ignore the music.

The district court dismissed the claim with prejudice, reasoning that the music was not targeted at, and did not affect, just one sex and therefore could not be discrimination “because of sex.” Rather, the plaintiffs’ allegations that both men and women were subjected to the music and both men and women found the music offensive demonstrated that neither sex was exposed to adverse terms or conditions of employment.

The Ninth Circuit Court of Appeals reversed the district court on both grounds. It held that music audible throughout the workplace can create a hostile work environment even if not directed toward any particular individual or group. In support, the court cited another case where a radio program alleged to be offensive was broadcast loudly at the workplace and served as the basis of a hostile work environment claim even though the program was not directed solely toward the claimant.

Relying on the principle that harassment need only be severe or pervasive to constitute sex-based harassment, the court held that a work environment where offensive sights and sounds that are seen or heard by everyone can “pervade the work environment” and constitute unlawful sex-based discrimination.

The Ninth Circuit also rejected the notion that when both men and women perceive workplace conduct as harassing, it cannot constitute sex-based discrimination as a matter of law. Without ruling on the allegations in this case, the court held that a determination of whether a claimant has alleged sufficient factual allegations to state a claim of sex-based discrimination is not prevented when both men and women complain of the same underlying conduct. It instead recognizes that the same conduct may “simultaneously offend different genders in unique and meaningful ways.”

Practical considerations for HR

We do not know what will become of Sharp’s claim, but employers can learn from this case and avoid similar disputes in their workplaces. Here’s how:

Ensure manager awareness of standards of conduct.

HR’s best ally is a thoughtful and well-trained manager. Do first-line managers at your organization know whether playing music that is perceived to be vulgar, misogynistic and sexually graphic is consistent with your code of conduct? Assess whether the training provided to managers addresses all facets of employer-employee relations, including what audio and visual media is played in the workplace.

If one takes Sharp’s allegations at face value, it seems that the manager could have prevented this dispute by assessing whether the music was consistent with the company’s standards of conduct and whether playing the music promoted a work environment inviting to all. That standard will differ by workplace, but managers are employers’ first line of defense in preventing costly disputes.

Flag and monitor multiple complaints of the same conduct.

Assuming Sharp and her co-worker both complained of the music being played at the worksite, those overlapping complaints presented an opportunity for the HR team to identify an area of discomfort for employees. First, tracking all complaints, even if unwritten, allows employers to maintain data on the issues that arise in the workplace.

When the same issue arises more than once in a particular timeframe (perhaps, within a 12-month period), employers should take note and consider further review. Second, employers should consider having more than a dedicated HR business partner review location-specific complaints. This serves as quality control that can improve the chances that complaints are being handled consistently with company policy and across locations.

See also: Psychological safety: A driver of workplace dynamics and wellbeing

Enact policies that are more stringent than the law.

Many employers maintain anti-sexual harassment policies that are more stringent than Title VII. HR professionals should understand how the employer’s policy differs from Title VII and whether there may be opportunities to prevent unlawful sexual harassment by holding their businesses to a higher standard in the employer’s policy. Taking Sharp’s allegations as true for these purposes, playing music that contains vulgar and derogatory language toward a particular gender may violate a company policy even if there is a question about whether it violates Title VII.

Avoid multiple plaintiff actions.

Depending on the size of the employer, music in the workplace that is offensive to some employees can increase the risk of multiple plaintiff actions. If those actions become large enough, they could even develop into a putative class action. Those disputes frequently are more disruptive to the workplace than claims between one employee and the employer.

If you don’t know whether music is regularly broadcast at your workplaces, might this be a good time to survey managers and employees on this issue? Questions about music can be included in an employee satisfaction survey or a more targeted sampling of employees.

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