Exposure to Sexually Explicit Music in the Workplace Can Constitute Harassment. The Ninth Circuit, pursuant to the facts presented, recently held that sexually explicit or violently misogynistic music, blared throughout the workplace with the approve of management, can be considered sexual harassment. In the case, the employer approved of music that denigrated women, glorified prostitution, and described extreme violence throughout its warehouse. The court rejected the employer’s argument that the music was “motivational.” Stephanie Sharpe, et. al. v. S&S Activeware, L.L.C, No. 3:20-cv-00654-MMD-CLB (9^th Cir., 2023).

Consensual Relationships and Sexual Harassment. In the wake the suspension of Michigan State’s football coach for allegedly sexually harassing a subordinate (who happened to be a rape survivor) raises the oft-asked question about consent as it relates to workplace relationships. Tucker essentially confessed to much of the alleged conduct but argued that his accuser knew of and consented to his conduct. Sexual harassment must be “unwelcome” interpreted by the Supreme Court to mean that participation may or may not indicate whether the conduct was unwelcome. This is in recognition of circumstances where a victim may unwillingly participate in harassing conduct because of the fear of loss of job or other employment benefit. We are following who the court will be believe-Tucker or the victim- as to whether his conduct was “unwelcome.”

EEOC Proposes Updates to Workplace Harassment Guidance. After years in the making, the EEOC recently published proposed updates to its Workplace Harassment Guidance to include protection for federal employees against harassment specifically for LGBTQ+ employees, pregnant workers and for religious expression. It also recognizes the possibility of virtual harassment considering the federal government’s extensive use of telework. While the updates apply to federal employees, it is anticipated many state, local and private sector employees will adopt these updates as well.