Industry supplier S&S Activewear (PPAI 256121, S12) is facing a lawsuit over music in the workplace. Last week, the U.S. Court of Appeals for the Ninth Circuit ruled that derogatory music playing at work could violate sexual discrimination laws, clearing the way for a lawsuit by eight former employees to move forward.

In Court

The lawsuit stems from an issue at the company’s Reno, Nevada, facility. It alleges that S&S permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its warehouse, creating an environment that “catalyzed” abusive behavior.

In 2021, a lower court had dismissed the case, reasoning that the music’s offensiveness to both men and women and audible throughout the warehouse nullified any discriminatory potential. The Ninth Circuit vacated that decision on two key principles:

  • Harassment, whether aural or visual, does not need to be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim.
  • The challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim.

Issuing a statement on the case to PPAI Media, S&S Activewear says, “We strive to make our workplace both safe and inclusive for all, while ensuring our team members feel respected, fulfilled and motivated. We remain confident that the U.S. District Court will once again determine – as previously concluded in 2021 – that the plaintiff’s suit is without merit.”

Business Implications

S&S Activewear is not the first company to run afoul of offensive music playing at work. Another court case, this time involving Tesla and also in Nevada, was filed in October 2022. It claims the automaker failed to take action on complaints of “obscene and misogynistic” music and inappropriate touching and comments from coworkers.

For businesses seeking to maintain a safe and welcoming work environment, the challenges these cases represent require scrutiny and care. Most employers have policies against sexual or race-based harassment. They must be diligently followed and enforced, particularly when a complaint is made.

Approaching issues like these present businesses with several options. Banning all music in the workplace is one. Banning or regulating any one type of music, however, is tricky as businesses would then run the risk of enacting policies that benefit one group at the expense of another, leaving them open to discrimination claims.

Labor and employment attorney Alejandro Pérez has further alternatives and advice businesses can consider:

  • Allow music but monitor it for vulgar content. Or play it in a local setting, like at a workstation, or through headphones if safety allows.
  • Take employees’ complaints seriously and investigate them thoroughly.
  • Create and publish clear policies and procedures for employees.
  • Train employees and management on appropriate and inappropriate behavior.