Wednesday, June 07, 2023

Sharp v. S&S Activewear (9th Cir. - June 7, 2023)

Today's opinion by Judge McKeown will likely affect your life more than the overwhelming majority of Ninth Circuit decisions this year.

Sub silentio.

The Ninth Circuit reverses the trial court's dismissal and holds that it might well constitute sexual harassment for a business to play "sexually derogatory" or "misogynistic" music in the workplace.

That holding, I predict, will have a major influence on the type of music that employees as well as customers routinely hear in businesses.

Mind you, it's not likely that most of the businesses that you patronize play the type of music that the Ninth Circuit's talking about. Last time I checked, anyway, places like Trader Joes and the like weren't pumping out, say, A$AP Rocky over the loudspeaker.

Still, there's a nontrivial amount of music that could easily be described -- or at least claimed to be -- violent, sexually derogatory and/or misogynistic that you occasionally hear in business settings. That music includes not only the stuff deliberately disseminated by the business, but also whatever music might be audible from the speakers or earbuds of individual employees.

After today, in the Ninth Circuit, at least, I suspect you'll see lots of businesses clamping down hard on the type of music that can permissibly be played at work.

In short, more Musak, less pop. Even at "hip" establishments. (As well as, potentially, many times of bars and restaurants.)

Now, for many people, that might well be viewed as a win, given their particular taste in music.

But whether it's a W or an L, after today, I strongly suspect it's going to happen.

'Cause no one wants to be sued for sexual harassment. Ever.

Even if it means listening to Barry Manilow all day.