June 22, 2023

‘Equally Offensive’ Conduct is Not a Valid Defense Against Hostile Work Environment Allegations  

The recent 9th Circuit case Sharp v. S&S Activewear, L.L.C provides important guidance to employers on the varied types of behavior that can constitute discrimination based on sex under Title VII of the Civil Rights Act of 1964 (Title VII).

Eight former employees (“Sharp”) – both male and female – alleged that the employer’s practice of allowing managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its 700,000 square-foot warehouse workspace created a hostile or abusive work environment constituting discrimination because of sex.

Despite nearly two years of complaints to management about the offensive nature of the music and subsequently abusive conduct by male employees[i] the company stood by its decision to defend the music as “motivational.” In lower court proceedings, the company argued that “the challenged conduct did not constitute discrimination because of sex since both men and women were offended by, and all employees were exposed to, the music.” This was the issue brought before the 9th Circuit: “whether the district court erred as a matter of law in dismissing the music-based claim because the [lower] court did not view that claim as actionable since the music offended both female and male employees and the music did not target any specific employee or group of employees.”

Title VII’s prohibitions against discrimination because of sex protects both men and women. As the Court commented, “it is no surprise that sexually charged conduct may simultaneously offend different genders in unique and meaningful ways.” The Court ultimately determined that “targeting a specific person is not a prerequisite for a viable claim under Title VII” and that the coexistence of male and female plaintiffs in a hostile work environment claim “provides no defense to an accusation of sexual harassment.”

A few key takeaways:

  • No matter the type of discrimination alleged (e.g., sex or race), an employer cannot evade liability by cultivating a workplace that is broadly hostile and equally offensive.
  • Abusive conduct[ii] based on a protected classification (i.e., sex, race, religion, etc.) can rise to the level of harassing/discriminatory conduct under California’s Fair Employment and Housing Act (FEHA).
  • Harassment can take many forms – physical, visual or verbal – and can invade the workplace in many different ways.



[i] Former employees alleged “the music served as a catalyst for abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos.”

[ii] Defined under Cal. Govt. Code §12950.1(h)(2) to mean: “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”