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The Ninth Circuit disagreed and vacated the District Court’s order dismissing this claim. In doing so, the Court observed that the employer’s arguments “hinge on an ‘equal opportunity harasser’ defense that we simply do not countenance.  An employer cannot find a safe haven by embracing intolerable, harassing conduct that pervades the workplace.”

What do you think of the holding? The Ninth Circuit claimed that this was a case of first impression, but I see this kind of fact pattern repeatedly in the work that I do. It’s not usually music blasting from commercial speakers at deafening decibels. Instead, it’s music played in a breakroom or an employee singing loud enough for coworkers to hear. Should the playing or singing of songs that use racial or gender epithets, refer to sexual acts in vulgar terms, or use other offensive (to many if not all employees) words be the basis for a hostile environment claim?

If you don’t think so, this does not mean you approve of the conduct or, if you are an employer, lack any ability to stop it. Certainly, no employer is required to allow this type of conduct to go on in the workplace. Employer policies can and should prohibit using epithets and offensive language in any context. It is, however, a different question to ask whether allowing such music to be played in a warehouse should be the basis for a claim which requires that the offending conduct occur “because of sex.”  Are you convinced by the Ninth Circuit’s rationale or not? Happy to discuss this, please feel free to email me.

Do you have a case that you’d like to settle quickly? I still have some availability in late March and early April. In addition, dates frequently open up as scheduled arbitration hearings go off calendar almost every month. Check my calendar and book instantly.