In Sharp v. S&S Activewear, L.L.C., 2023 WL 3857491 (9th Cir. June 7, 2023), the court vacated a lower court’s dismissal of plaintiff’s claim of hostile work environment sexual harassment under Title VII of the Civil Rights Act of 1964 based on “music with sexually derogatory and violent content, played constantly and publicly throughout the workplace.” The court held that this conduct may create a sexually-hostile work environment, and that it was error for the district court to hold, as a matter of law, that it could not.
The court summarized the facts as follows:
The eight plaintiffs in this action (collectively, “Sharp”) are former employees of apparel manufacturer S&S Activewear (“S&S”). Seven are women and one is a man. Sharp alleges that S&S permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its 700,000-square-foot warehouse in Reno, Nevada. According to Sharp, the songs’ content denigrated women and used offensive terms like “hos” and “bitches.” Songs like “Blowjob Betty” by Too $hort contained “very offensive” lyrics that “glorifie[d] prostitution.” Likewise, “Stan” by Eminem described extreme violence against women, detailing a pregnant woman being stuffed into a car trunk and driven into water to be drowned.
Blasted from commercial-strength speakers placed throughout the warehouse, the music overpowered operational background noise and was nearly impossible to escape. Sometimes employees placed the speakers on forklifts and drove around the warehouse, making it more difficult to predict—let alone evade—the music’s reach. In turn, the music allegedly 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. Although the music was particularly demeaning toward women, who comprised roughly half of the warehouse’s workforce, some male employees also took offense. Despite “almost daily” complaints, S&S management defended the music as motivational and stood by its playing for nearly two years, until litigation loomed.
After summarizing the black-letter law, the court applied it as follows:
Core principles of employment discrimination law guide our analysis. To begin, a plaintiff bringing a hostile work environment claim must show discrimination by an employer on account of membership in a protected group under 42 U.S.C. § 2000e-2(a)(1). The offensive conduct must be “sufficiently severe or pervasive to alter the conditions of employment.” Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020). Notably, individual targeting is not required to establish a Title VII violation. See Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 687 (9th Cir. 2017). “It is enough,” we have held, “if such hostile conduct pollutes the victim’s workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.” Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994). “When the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted).
Context matters. Workplace conduct is to be viewed cumulatively and contextually, rather than in isolation. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en banc). This approach makes common sense in order to screen out one-off, isolated events and yet benchmark conduct in the context of a specific workplace. Objectionable conduct is not “automatically discrimination because of sex merely because the words used have sexual content or connotations.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). “[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminat[ion].” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks and citations omitted). These parameters “prevent[ ] Title VII from expanding into a general civility code” for the American workplace. Oncale, 523 U.S. at 81. However, a boorish and generally hostile workplace does not shield against Title VII liability. The Supreme Court has made clear that it is no “defense for an employer to say it discriminates against both men and women because of sex.” Bostock v. Clayton County, 140 S. Ct. 1731, 1741 (2020). “Instead of avoiding Title VII exposure, this employer doubles it.” Id.
Applying these core principles, we conclude that the district court erred in rejecting Sharp’s hostile work environment claim as incurable and legally deficient. More than offhand foul comments, the music at S&S allegedly infused the workplace with sexually demeaning and violent language, which may support a Title VII claim even if it offended men as well as women. Although we have not before addressed the specific issue of music-as-harassment, this court and our sister circuits have recognized Title VII redress for other auditory offenses in the workplace and for derogatory conduct to which all employees are exposed. The EEOC, which filed an amicus curiae brief on behalf of Sharp, endorses this position. Emphasizing this appeal’s impact on the future “ability of the EEOC and private parties to enforce Title VII,” the agency agrees that “exposing employees to misogynistic and sexually graphic music can be discrimination because of sex, even where the employer exposes both women and men to the material and even though both women and men find the material offensive.”
We review de novo the district court’s dismissal for failure to state a claim and its denial of leave to amend where such denial rests upon futility grounds. Cohen v. ConAgra Brands, Inc., 16 F.4th 1283, 1287 (9th Cir. 2021). At this early stage of litigation, our only task is to assess whether the allegations in Sharp’s complaint, taken as true, state a plausible claim of sexual harassment. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). It is beyond our purview to pass judgment on the appropriateness of music in the workplace writ large. Nor is it our objective to ascribe misogyny to any particular musical genre. Our resolution is more modest: we conclude that the district court erred in dismissing Sharp’s sex-based discrimination claim as “fatally flawed.”
The court additionally denounced defendant’s so-called “equally opportunity harasser” defense, holding that “an employer cannot evade liability by cultivating a workplace that is broadly hostile and offensive.”