Offensive Music Ruling Guts ‘Equal Opportunity Harasser’ Theory

Employers will have to rethink their defenses to hostile work environment allegations now that a federal appeals court has held that sexually graphic and misogynistic music in the workplace can give rise to gender bias claims even if both male and female employees are affected.

This week’s ruling from the US Court of Appeals for the Ninth Circuit revived a lawsuit by a group of warehouse workers who alleged that managers and co-workers at S&S Activewear LLC regularly played vulgar music on the job and disregarded their complaints.

In particular, the panel dismissed the “equal opportunity harasser defense,” which protects employers from liability for harassment against both men and women because the harassment couldn’t be said to be “because of sex.”

This ruling builds on judicial precedent that sex-based discrimination violates Title VII of the 1964 Civil Rights Act even if it’s aimed at more than one gender, legal scholars told Bloomberg Law.

“To my mind, this result is good. We do not want claims to be dismissed because men are also offended by sexist language and conduct, or Whites are also offended by racist language or conduct,” said Angela Onwuachi-Willig, dean of Boston University’s School of Law.

But offensive music alone isn’t likely to support a Title VII sexual harassment claim, legal observers say.

“I see this case as being less about the music and more about dismissing the ‘equal opportunity discriminator’ defense, which is a horrible defense that only helps to perpetuate discrimination,” Onwuachi-Willig said.

Michelle E. Phillips of Jackson Lewis PC said this defense “will become less viable in time,” and companies should be concerned about the message they’re sending when they assert the theory.

“While Title VII does not create code of civility in the workplace, being an equal opportunity harasser does not provide an escape hatch either when offensive conduct or comments affect an employee’s terms, and conditions of employment, which this clearly did,” said FisherBroyles LLP partner Amy Epstein Gluck.

Avoiding ‘Inane’ Result

The Ninth Circuit held that a federal district court wrongly tossed the case on the basis that the music at issue couldn’t factor into a sex-based hostile work environment claim because both men and women were offended.

Had the Ninth Circuit ruled the other way, it would have “completely subverted the purpose of a hostile work environment cause of action,” said Robert Baldwin III, founder and managing attorney at Virtue Law Group, a plaintiff-side labor and employment firm.

“There are plenty of non-black people that find the N-word objectionable, for instance,” Baldwin said. “But according to the district court’s reasoning, saying the N-word at work wouldn’t create a hostile work environment for Black people because non-Black workers were also offended.”

“It doesn’t take a lawyer to understand that’s completely inane,” he said.

Permitting such a defense also would’ve created a “loophole” that allows businesses to escape Title VII liability for “these types of pervasive and hostile work environment claims,” said Alex Lee of Einhorn, Barbarito, Frost & Botwinick PC.

“The court emphasized that equally offending both male and female employees would only make the conduct more outrageous,” he said.

Policy Enforcement

The ruling offers key lessons to employers to avoid scenarios where workers can view actions as disproportionately harming members of protected groups, attorneys say.

“They need to be cognizant” of the content of the music being played and ensure it’s in line with their antidiscrimination and sexual harassment policies, Lee said.

At the same time, employers should take care to ensure that their policies and enforcement of them don’t benefit one protected group at the expense of another. And they should steer clear of banning only a certain musical genre linked to a protected group, Phillips said.

“You want to be consistent across the board,” she added. “If you’re not, that might impact people differently based on race, gender or other protected groups.”

Along those lines, the Ninth Circuit said it’s “beyond our purview to pass judgment on the appropriateness of music in the workplace” or ascribe “misogyny to any particular musical genre,” Lee noted.

Most employers already have polices prohibiting certain behaviors at work, but enforcement is crucial, Baldwin said.

“Whenever there’s a complaint, employers must take it seriously,” he said. “It’s not just to avoid liability,” but also to provide workers with a sense of belonging “so they can show up and take pride in their work.”