Sexual Harassment Claim, Based on Alleged Misogynistic Warehouse Music, Insufficiently Alleged

In Sharp v. S&S Activewear, LLC, 2021 WL 5826310 (D.Nev. Dec. 8, 2021), the court, inter alia, dismissed plaintiff’s claim of a sexually hostile work environment asserted under Title VII of the Civil Rights Act of 1964.

In sum,

Plaintiffs allege that while they worked at Defendant’s warehouse, Defendant permitted managers and some employees to play sexually graphic and misogynistic music. The music referenced violence towards women, contained gendered expletives, and was sexually explicit in nature. Plaintiffs and many of their coworkers, both men and women alike, were offended by the music and found it degrading to women.  Defendant was aware that many employees were offended because Defendant received almost daily complaints about the music.

In finding that plaintiffs failed to assert a Title VII claim, the court explained:

Plaintiffs’ claim alleges that both male and female employees were offended by the loud, graphic, sexually explicit music Defendant permitted to be played at work. Defendant argues that Plaintiffs’ claim fails as a matter of law because both men and women were offended by the sexually explicit and offensive music—therefore no individual or group was subjected to harassment because of their sex or gender. The Court agrees with Defendant.

“Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discriminat[ion] … because of … sex.’ ” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (quoting 42 U.S.C. § 2000e-2(a)) (emphasis in original). “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (Ginsburg, J., concurring)); see also Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1067 (9th Cir. 2002) (“Discrimination is the use of some criterion as a basis for difference in treatment … In the context of our civil rights laws, including Title VII, discrimination is the use of a forbidden criterion as a basis for a disadvantageous difference in treatment.”) (emphasis in original).

Plaintiffs argue that the music played was offensive to both male and female employees. The eight Plaintiffs bringing this action are seven women and one man, all asserting that the music was subjectively offensive to them and that it was severe enough to constitute a hostile work environment. But Plaintiffs fail to state an actionable Title VII claim because they fail to allege that the offending conduct was discriminatory. The music was played warehouse wide and all employees were subjected to it. Nowhere in the FAC do Plaintiffs assert that any employee or group of employees were targeted, or that one individual or group was subjected to treatment that another group was not. While the music may indeed have been offensive, sexually explicit, and inappropriate for a work environment, the FAC alleges that it was not directed at employees of either sex. Because “Title VII does not prohibit all verbal or physical harassment in the workplace” but rather “is directed only at ‘discriminat[ion] … because of sex,” Plaintiffs’ claim fails to allege a Title VII violation. See Oncale, 523 U.S. at 80.

Because Plaintiffs do not assert that they were discriminated against on the basis of sex, the Court will dismiss the sexual harassment claim. As Plaintiffs have repeatedly alleged that both men and women were offended by the music, the Court further finds that no amendment could cure the claim and will therefore dismiss it with prejudice.

[Citations omitted.]

The court did, however, permit plaintiffs to amend their sexual harassment as it relates to other alleged offending conduct, such as that

(1) male employees openly shared pornographic videos at work, (2) male employees pantomimed sexual intercourse, (3) male employees were treated in a preferential manner relative to female employees, (4) sexual remarks were made by various male employees, (5) male employees subjected female employees to retaliatory hostility when they complained about sexual harassment, (6) male employees made inappropriate comments about one of the Plaintiffs’ sexual orientation, and (7) male employees and managers grabbing their genitals while looking at female employees.

The court held that while these allegations were, as pleaded, conclusory and vague (and thus did not plausibly allege a Title VII claim), each of them “may (or may not) support a plausible claim that one or more of the Plaintiffs was subject to discriminatory conduct because of their sex, gender, or sexual orientation.”

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