A remarkable decision handed down by the U.S. Court of Appeals for the Ninth Circuit has established a welcome new precedent for workplace sexual discrimination claims. The notable court opinion rejected previous opinions that effectively permitted offensive workplace behavior that was equally offensive to both sexes.
The original case, filed in 2020, asserted that the incessant playing of misogynistic rap music glorifying murder and violence created a discriminatory and harassing environment in a Nevada warehouse. The claim was filed by one male and seven female employees of S & S Activewear, a Reno-based clothing warehouse. The plaintiffs described a workplace where they were subjected to at least five powerful commercial speakers being driven around a 700,000-square-foot facility, blasting music that graphically described sexual violence and denigrated women.
A lower court heard the case but agreed with the employer in late 2021 that playing the music was not discriminatory because it was an equal-opportunity offender: the court wrote that because both men and women were offended, it “did not constitute discrimination because of sex.” The appeals court’s review reversed that decision and returned the case back to the trial judge, noting that employers could not evade responsibility for allowing pervasive harassing conduct by hiding behind a gender-based defense.
In writing that “an employer cannot find safe haven by embracing intolerable, harassing conduct that pervades the workplace,” Judge M. Margaret McKeown opened new doors for employees seeking protection from offensive behaviors similar to those faced by the Nevada warehouse workers, who both described the blaring music as inescapable and described disturbing behaviors that the lyrics inspired in their colleagues. Their testimony described male employees pantomiming sexual intercourse, yelling obscenities and sexual remarks, and sharing pornographic videos.
Rather than acting to protect employees who complained about the music, S & S
Activewear’s management reportedly dismissed their distress and called the music “motivational.” The situation continued for almost two years until, demoralized and upset by “the prevalence of the foul rap music and various other forms of sexual harassment,” many employees quit their jobs and the company learned that the eight plaintiffs in the case intended to file suit.
In its defense against the workplace discrimination claims, the company argued that the music could not represent sexual discrimination because it was heard by (and offended) both men and women. Though the lower court concurred with this assertion, the appeals court pointed to previous successful claims regarding sexual content or behavior that was pervasive rather than pointed at specific individuals or categories. Judge McKeown noted that “sexist epithets can offend and may transform a workplace into a hostile environment” no matter how it is delivered. This ruling is expected to significantly expand the rights of workers in hostile work environments.
If you are facing a sexualized, offensive work environment or are being discriminated against based on your membership in a protected class, our experienced attorneys can help. Contact us today to set up a time to discuss your situation.