Music May Be Universal Language, But Don’t Play It Aloud at Work

Employees have grown accustomed to working remotely and have developed certain habits, including listening to music or podcasts out loud while working at home. As companies transition back to the office, they should be mindful of situations that may create problems, including playing music or other media aloud, in a shared workspace.

Recently, the US Court of Appeals for the Ninth Circuit Court held in Sharp v. S&S Activewear that sexually explicit music played in the workplace can create a hostile work environment in violation of Title VII of the Civil Rights Act. The case noted how “‘repeated and prolonged exposure to sexually foul and abusive music’ falls within a broader category of actionable, auditory harassment that can pollute a workplace and violate Title VII.”

The holding in Sharp is consistent with decisions by other courts, including a US Court of Appeals for the Eleventh Circuit decision, Reeves v. C.H. Robinson Worldwide, finding that sexually explicit radio programming can similarly create a hostile work environment.

To succeed on a hostile work environment claim, a plaintiff must show discrimination by the employer on account of a protected characteristic under Title VII, such as sex, race, color, religion, sexual orientation, or national origin.

Title VII is violated when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Several states and cities have analogous laws that provide even more workplace protections for employees.

In Sharp, several employees, including both men and women, alleged that their employer subjected them to a hostile work environment by playing “sexually graphic, violently misogynistic” music in the workplace. The Ninth Circuit noted that the music was blasted from speakers placed throughout the worksite, making it difficult to evade the music.

The plaintiffs alleged that the music prompted abusive and inappropriate conduct, such as male workers making sexually offensive remarks and gestures and openly sharing pornographic images in the workplace. Although management received complaints from employees related to the music, the employer continued to allow the music to be played because managers felt it motivated employees to work harder.

The Ninth Circuit held that the music “infused the workplace with sexually demeaning and violent language, which may support a Title VII claim even if it offended men as well as women.” The decision in Sharp confirms that employers cannot escape liability when they cultivate a hostile work environment that’s permeated with sexually demeaning language, even if such language only emanates from music being played in the workplace.

Similarly, in Reeves, the Eleventh Circuit held that a Title VII claim brought by a female employee who was exposed to sexist radio programming in her office could proceed to trial. The plaintiff alleged that a radio show played in the workplace discussed gender-derogatory and sexually explicit topics, which offended her. The court noted that the plaintiff’s efforts to evade the programming, including changing the radio station and lowering the volume failed to resolve the situation and her internal complaints went unanswered.

Like in Sharp, the plaintiff in Reeves witnessed crude behavior from male co-workers in conjunction with the radio show. The Eleventh Circuit stated that “words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff.”

Guidance for Employers

The Sharp and Reeves decisions have some commonalities that may be helpful to employers seeking to prevent similar types of claims. First, the courts in both cases noted that the programming was played frequently and publicly, making it difficult for employees to avoid.

Employers should be mindful of workplace arrangements and consider policies and practices that limit the reach of music or other media played within the workspace. Employers may want to consider policies that prohibit playing music or other broadcasts aloud in the workplace. Employers may also wish to add examples regarding music and other media to their anti-harassment prevention policies and trainings.

Employees may be encouragedto instead listen to music within the confines of their own office or to wear headphones if they wish to listen to music or other programming while in shared spaces—provided that such headphone usage does not pose any safety concerns for them or others. Employers could consider monitoring music, media, or content that contains sexually explicit language or any other language that might be considered offensive on the basis of a protected characteristic (such as sex, race, or religion). Employers should address complaints appropriately and in an expeditious manner.

In both Sharp and Reeves, the courts noted that the programming went beyond passive background music and seemingly permitted a culture in which coworkers engaged in sexually explicit and offensive behavior. It’s therefore important for employers to monitor any workplace behavior or activity that may be deemed offensive or inappropriate.

In light of these recent decisions and the evolving post-pandemic workplace landscape, employers should be mindful of cultivating a work environment that is inclusive and respectful for all.

This includes recognizing that not all music and multimedia is appropriate for the workplace. As Ludwig van Beethoven said, “music can change the world,” but there’s no reason for it to change an otherwise collegial workplace into a hostile work environment.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Keith A. Markel is a partner and co-chair of the labor and employment department at Morrison Cohen.

Alana R. Mildner is an associate at Morrison Cohen’s labor and employment department.

Kayla N. West is an associate at Morrison Cohen’s labor and employment department.

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