Congress charged the Equal Employment Opportunity Commission
(“EEOC” or “Commission”) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. (“Title VII”). In this case, plaintiffs—seven women
and one man—allege that their employer, S&S Activewear, L.L.C. (“S&S”),
exposed them to “violently misogynistic” and “sexually graphic” music in the
workplace, ER-86, thus creating a work environment that was discriminatory “because
of . . . sex” for purposes of Title VII, 42 U.S.C. § 2000e-2(a)(1).
The district court dismissed these claims under Federal Rule of Civil Procedure 12(b)(6), ruling
that such music could not be considered part of a sex-based hostile environment
claim as to any plaintiff, male or female, because it offended “both men and
women” and S&S did not “target[]” the music at any particular “employee or
group of employees” of either sex. ER-17, ER-18, ER-21.
The district court’s focus on both sexes being offended
and whether the employer “targeted” any particular employees, rather than on
the conditions in the workplace, was misplaced. In our view, 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. Because the resolution of this
issue may affect the ability of the EEOC and private parties to enforce Title VII, the Commission respectfully offers
its views to the Court. See Fed. R.
App. P. 29(a)(2).
Did the district court err in concluding that sexually
abusive, violent, and misogynistic music could not be considered part of a
sex-based hostile work environment under Title
VII as to the claims of seven women and one man, because both men and women were
exposed to the music and found it offensive?
A. Statutory Background
It is “an unlawful employment practice” under Title VII “for an
employer . . . to discriminate against any individual with
respect to [the] terms, conditions, or privileges of employment, because of
such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). It is
well settled that plaintiffs may establish such an unlawful employment practice
by proving that sex-based harassment “has created a hostile or abusive work
environment.” Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 66 (1986). And, the Supreme Court has held, “Title
VII’s prohibition of discrimination ‘because of . . . sex’
protects men as well as women.” Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998).
B. Factual Background
Plaintiffs here are seven women and one man. ER-83. They
all worked in non-managerial positions for S&S, an apparel manufacturer, at
S&S’s 700,000 square-foot warehouse in Reno, Nevada. ER-84, ER-90.
S&S routinely “allowed sexually abusive and
misogynistic ‘music’ to be . . . played from various
locations throughout this large facility.” ER-84. Both employees and
managers streamed the music from speakers and, “[o]n occasion, various
employees placed speakers on a forklift, or other powered vehicles,” and drove
around the facility broadcasting the music. ER-90-91. The music was audible
throughout the warehouse, and it contained the “repetitive use of
gender-offensive terms such as ‘bitch’ and ‘c__t.’” ER-86. The “violently
misogynistic” and “sexually graphic” music included “such musicians as Too
[$]hort (see, e.g., ‘Blowjob Betty’), and Eminem (see, e.g., ‘Stan[]’), Lil
Wayne, and other ‘rappers.’” ER-86. To illustrate the type of music at issue,
the complaint states that S&S often “loudly” played a song that “touts the
act of forcibly placing a pregnant woman in the trunk of a vehicle and then
driving the vehicle into a river or other body of water, for the purpose of
drowning her.” ER-92. The complaint also alleges that “‘Too
[$]hort’ . . . routinely writes sexually graphic and very
offensive, and misogynistic lyrics,” including a song that “references and
glorifies prostitution.” ER-92.
S&S received daily notice of the music because
managers, including high-level ones, were routinely present at the warehouse
where the music was audible. ER-93. Many employees, “mostly women,” complained
to S&S about the music’s “obscene and sexually offensive and misogynistic
character.” ER-93. According to the complaint, “a number of men,” including the
male plaintiff, Anthony Baker, also “were offended by the manner in which the
music portrayed men, and their relationships with women.” ER-92; see also ER-84
(alleging that Baker and other men “were offended by the music and related
conduct ‘because of sex’”).
The complaint further alleges that S&S permitted
the “sexually foul music” “in derogation of the emotional health of many
employees whom [S&S] knew, and should have known, would be offended and
even traumatized, and re-traumatized.” ER-92. A number of employees quit “because
of the prevalence of the foul” music and other alleged harassment, as described
below. ER-93-94.
S&S sometimes justified playing the music on the
ground that it “motivated employees” in the Reno warehouse. ER-93. Despite the
numerous complaints, S&S failed to halt the music for almost two years,
until it learned that some of the plaintiffs had obtained counsel and intended
to take legal action. ER-93.
Aside from the music, S&S tolerated other acts of
alleged sexual harassment as well. For instance, male employees “openly shared
pornographic videos” in the warehouse and made “[s]exual remarks,” and both
male employees and supervisors “pantomim[ed] sexual intercourse”—often doing so
“in sync with or in conjunction with the music.” ER-91, ER-93. More generally, the
complaint alleged, S&S treated male employees “in a preferential manner
relative to female employees.” ER-91.
Plaintiffs filed suit alleging, as relevant here,
sex-based harassment under Title VII premised
on the music and other acts of harassment. ER-90-94. Plaintiffs also pled
“Collective Action Allegations” under 29
U.S.C. § 216(b) based solely on the music, asserting that the music
created a sex-based hostile work environment under Title VII, and seeking class-action
certification under Federal Rule of Civil
Procedure 23 based on the same allegations. ER-85-90.
S&S responded to plaintiffs’ complaint by filing a
motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), arguing that the conduct was not discriminatory on
the basis of sex. ER-48-71. In its motion, S&S emphasized that “both men
and women were offended by the work environment allegedly created by the music
played in the warehouse.” ER-52 (emphasis omitted). S&S further observed
that “all employees in [its] Reno warehouse were exposed to” the offensive
music. ER-57 (emphasis omitted). For their part, plaintiffs asserted that
“sexually offensive conduct is potentially actionable, even if both men and
women are offended thereby.” ER-25. Plaintiffs also argued that “sexual
hostility, directed at women, is [not] cured [merely because] that hostility is
also directed at men.” ER-27. In the alternative, plaintiffs asked the district
court for leave to amend their complaint if the court “dismisse[d] any of
the[ir] claims.” ER-20; see also ER-43-44.
C. District Court
Decisions and Procedural Background
Focusing on the complaint’s “Collective Action” section and treating the
complaint as alleging a single Title VII
sexual harassment claim predicated solely on the music, the district court
granted S&S’s motion to dismiss in pertinent part. ER-17-18. The court agreed with S&S
that the claim failed as a matter of law “because both men and women were
offended by the . . . music.” ER-17. “Plaintiffs fail to
state an actionable Title VII claim,” the
court added, “because they fail to allege that the offending conduct was
discriminatory.” ER-18. In reaching this conclusion, the court emphasized that
plaintiffs did not allege “that any employee or group of employees were
targeted, or that one individual or group was subjected to treatment that
another group was not.” ER-18. As support for its decision, the court quoted Oncale, in which the Supreme Court
stated that “[t]he critical issue” in this context “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.” ER-17 (quoting 523 U.S. at 80 (citation omitted)).
Addressing plaintiffs’ request for leave to amend their
complaint, the court held that plaintiffs’ “claim regarding music played in the
warehouse is fatally flawed and therefore will be dismissed with prejudice.” ER-21.
Nevertheless, the court observed that plaintiffs’ complaint included “cursory
allegations of other offensive conduct independent of the offensive music”—that
is, the allegations of preferential treatment towards men, men in the warehouse
pantomiming sexual intercourse and openly sharing pornography, and so on. ER-21;
see also supra pp. 5-6. The court granted plaintiffs leave to amend
their complaint to develop those allegations, but it reiterated that plaintiffs
could not proceed with the claim involving the music. ER-21-22.
Instead of filing an amended complaint, plaintiffs asked
the district court to enter a final judgment and for leave to appeal under Federal Rule of Civil Procedure 54(b) with
respect to the claim predicated on the offensive music. ER-8-10. S&S did
not oppose this motion and the district court granted it. ER-4, ER-6. Accordingly,
the only issue now before this Court is whether the district court erred in
deciding, as a matter of law, that the offensive music was not discriminatory on
the basis of sex and thus could not even be considered part of a sex-based
harassment claim on behalf of any plaintiff, male or female, because it
offended both men and women, and because S&S did not “target[]” any
particular “employee or group of employees” with it. ER-17-18.
Both the female plaintiffs
and the male plaintiff plausibly pled harassment because of sex based on the
sexually violent and misogynistic music.
The district court erred in holding that the music could
not factor into either the female plaintiffs’ or the male plaintiff’s sex-based
hostile work environment claims. Under Title
VII, it is “an unlawful employment practice for an
employer . . . to discriminate against any individual with
respect to [the] terms, conditions, or privileges of employment, because of
such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Title VII plaintiffs may establish a violation
by proving that “discrimination based on sex has created a hostile or abusive
work environment.” Meritor, 477
U.S. at 66. Although such plaintiffs must ultimately establish several
elements, including that the harassment is “sufficiently severe or pervasive
‘to alter the conditions of the victim’s employment,’” id. at 67 (internal brackets and citation
omitted), the only element at issue in this appeal is whether the particular music
S&S played in its warehouse could constitute “discriminat[ion]” “because
of . . . sex” within the meaning of the statute, 42 U.S.C. § 2000e-2(a)(1). And as to
that issue, the complaint’s factual allegation that S&S permitted violent,
misogynistic, and sexually offensive music to be blasted throughout the
workplace served to state plausible claims of sex-based harassment.
A. The district court erred in
dismissing the seven female plaintiffs’ music-based sexual harassment claims
with prejudice.
In Oncale,
the Supreme Court explained that “Title
VII does not prohibit all verbal or physical harassment in the workplace”; it
is directed only at “discrimination ‘because
of . . . sex.’” 523
U.S. at 78, 80. There are various ways to meet this standard. Id. at 81 (noting the existence of
multiple potential “evidentiary route[s]” to prove discrimination because of
sex). Certainly, if there is evidence that a supervisor targets an employee
with sex-specific and derogatory harassment, or is abusive to women but not to
men, that can make the requisite showing. See id. at 80-81; see also, e.g., EEOC v.
Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 844-47 (9th Cir. 2005) (holding
that rational trier of fact could find discrimination against three female
employees was “because of . . . sex” where “primarily women
were the targets” of the supervisor’s conduct).
But targeting is not required. Even if an employer
exposes men and women alike to the same offensive material, such material can
support a female plaintiff’s claim of sex-based discrimination where it is
degrading to women. Cf. Oncale, 523
U.S. at 80 (critical issue 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”) (citation omitted). In that situation, a jury could find
that sex-specific language and conduct spread throughout the workplace has the
effect of exposing female plaintiffs to “disadvantageous terms or conditions of
employment” as compared to men exposed to the same material. Reeves v. C.H. Robinson Worldwide, Inc.,
594 F.3d 798, 812 (11th Cir. 2010) (en banc) (quoting Oncale, 523 U.S. at 80); see also Nat’l Educ. Ass’n, Alaska, 422 F.3d at
844-45 (“Title VII is aimed at the
consequences or effects of an employment practice and not at the motivation of
co-workers or employers.” (internal ellipses and citation omitted)). Courts
have recognized that words such as “bitch” and “slut” are inherently
“gender-derogatory” and “more degrading to women than to men.” Reeves, 594 F.3d at 810 (noting that
“bitch” refers to a female dog or a malicious, spiteful woman and stating that
the word is “firmly rooted in gender” and “humiliating and degrading based on
sex” (citation omitted)); see also id.
at 812 (stating that “whore” traditionally refers to women and that “[c]unt” refers
to a “a woman’s vagina” and “is the essence of a gender-specific slur”).
The district court concluded that the music in S&S’s
warehouse did not even plausibly allege “discrimination” “because of sex”
within the meaning of Title VII because:
(1) it offended both women and men; and (2) it was audible throughout the
warehouse and thus S&S did not “target[]” or single out any individual or
group for adverse treatment by broadcasting the music. ER-17-18. The district court
thus dismissed the music-based claims in their entirety. ER-22. The court
erred.
1. The female plaintiffs stated
plausible claims of discrimination because of sex.
It is well-established that hostile
work environment plaintiffs may state a claim of discrimination based on sex
without alleging that they “were targeted, or that one individual or group was
subjected to treatment that another group was not.” Cf. ER-18 (district
court decision strongly suggesting that such “target[ing]” was necessary). Several
courts of appeals have held, in cases involving female plaintiffs, that a work
environment replete with words or conduct that are “explicitly sexual and
patently degrading of women” can constitute “discrimination” “because of sex”
under Title VII, even if women were
not targeted for the offensive conduct, because it imposes a “greater
disadvantage in the terms and conditions of their employment than men.” Gallagher v. C.H. Robinson Worldwide, Inc.,
567 F.3d 263, 270-71 (6th Cir. 2009); see also Nat’l Educ. Ass’n, Alaska, 422 F.3d at 842-43,
845 (where plaintiffs alleged sex-based hostile work environment for three female
employees, “the ultimate question under Oncale
is whether [the harasser’s] behavior affected women more adversely that it
affected men”).
For instance, as in this case, in Gallagher the employer argued that the
offensive conduct at issue—co-workers’ use of “bitches,” “whores” and “cunts,”
and other offensive comments—was not based on the plaintiff’s sex because most
of it “was not targeted at” the plaintiff and was “common and indiscriminate.”
567 F.3d at 270-71. The Sixth Circuit rejected
this argument, stating that it reflected “a mistaken perception of what is
required to find that conduct is ‘based on sex.’” Id. at 270. The court explained that both
the conduct directed at the plaintiff and the “indiscriminate conduct” “is
explicitly sexual and patently degrading of women” and “[t]he natural effect of
exposure to such offensive conduct is embarrassment, humiliation and
degradation, irrespective of the harasser’s motivation.” Id. at 271. Accordingly, the court held
that the plaintiff had adduced sufficient evidence to create “a triable fact
issue on the ‘based on sex’ element.” Id.
at 272.
Likewise, in Petrosino
v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004), the Second Circuit held that
a jury could reasonably find a workplace “discriminatory based on sex” where
“sexually offensive comments and graffiti” were omnipresent at the workplace,
and “a reasonable person, regardless of gender, would consider” such material
to be “more offensive to women than to men.” Id. at 214 & n.3, 222. And in Reeves, the full Eleventh Circuit
concluded that a jury could reasonably deem a workplace discriminatory because
of sex where much of the offensive conduct was “gender-specific,” e.g.,
co-workers often used words such as “whore,” “bitch,” and “cunt”—though
they did not direct these slurs at the plaintiff herself. 594 F.3d at 811-12.
In these cases, it made no difference that the employer
exposed members of both sexes to the allegedly offensive material. See Gallagher, 567 F.3d at 271; see also
Petrosino, 385 F.3d at 221, 223
(rejecting employer’s argument, much like S&S’s here, that “the common
exposure of male and female workers to sexually offensive material necessarily
precludes a woman from relying on such evidence to establish a hostile work
environment based on sex”); Reeves,
594 F.3d at 806, 813 (reasonable jury could find that plaintiff’s workplace
exposed her “to disadvantageous terms or conditions of employment to which
members of the other sex were not exposed” even though “the derogatory language
in the office” was used “in the presence of all employees”).
Nor was it necessary in these cases for the plaintiffs
to show that their employers’ motive in tolerating or creating such an
environment was grounded in anti-female animus. See Gallagher, 567 F.3d at 271, 272 (observing
that most of the “offensive conduct [did] not appear to have been motivated by
[the plaintiff’s] presence or by the fact that she is a woman,” but criticizing
the trial court, which had found no sex-based discrimination as a matter of
law, for “focus[ing] too narrowly on the motivation for the harassers’
offensive conduct rather than on the effects of the conduct on the
victim-recipient”); see also Petrosino,
385 F.3d at 222 (deeming it irrelevant that “male co-workers would likely have
traded sexual insults every morning and defaced terminal boxes with sexual
graffiti regardless of [the plaintiff’s] presence”); Reeves, 594 F.3d at 812-13 (similar); cf.
29 C.F.R. § 1604.11(a)(3) (EEOC
guideline defining “sexual harassment” to include
“verbal . . . conduct of a sexual nature” that “has the
purpose or effect of . . . creating an intimidating,
hostile, or offensive working environment” (emphasis added));
see also Nat’l Educ. Ass’n,
Alaska, 422 F.3d at 844-45 (explaining that plaintiffs do not need to
demonstrate that harasser “had a specific intent to discriminate against women
or to target them ‘as women’” because “Title
VII is not a fault-based tort scheme,” but instead is “aimed at the
consequences or effects of an employment practice” (citation omitted)).
Instead, the courts in these cases held that a
reasonable juror could conclude that the “gender-derogatory language and
conduct” spread throughout the workplace had the effect of exposing the female
plaintiffs to “disadvantageous terms or conditions of employment” as compared
to men exposed to the same material. Reeves,
594 F.3d at 812 (quoting Oncale,
523 U.S. at 80); Gallagher, 567
F.3d at 271; see also Petrosino,
385 F.3d at 221 (“The mere fact that men and women are both exposed to the same
offensive circumstances on the job site . . . does not mean
that, as a matter of law, their work conditions are necessarily equally
harsh.”). And thus, the courts found a trial-worthy issue as to
“discriminat[ion]” “because of . . . sex” under Title VII, 42 U.S.C. § 2000e-2(a)(1).
This Court has endorsed the same principle in the
closely related race context, holding that “if racial hostility pervades a
workplace, a plaintiff may establish a violation of Title VII, even if such hostility was not
directly targeted at the plaintiff.” McGinest
v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004) (district court
erred when assessing the severity or pervasiveness of harassment in discounting
conduct directed at African American plaintiff on the ground that “a white
worker[] was also targeted”); see also, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 n.10 (2002) (“Hostile work environment claims based on racial
harassment are reviewed under the same standard as those based on sexual
harassment.”).
And according to this principle, the seven female
plaintiffs here set forth plausible sex-based hostile work environment claims
predicated on the music. Instead of focusing on whether S&S “targeted” “any
employee or group of employees,” ER-18, the district court should have
addressed whether the music’s content was sufficiently “gender specific” and
“degrading of women” to qualify as sex-based harassment towards the female
plaintiffs. Reeves, 594 F.3d at
804; Gallagher, 567 F.3d at 271.
And if the court had focused on that relevant criterion, it should have reached
a different conclusion.
Indeed, as the complaint sets forth, S&S’s male
managers and employees routinely played “sexually abusive and misogynistic”
music throughout the Reno warehouse. ER-84. This music, plaintiffs allege, repeatedly
referred to women as “‘hos’ (slang for ‘whore’), bitches and ‘c__ts.’” ER-92; see
also, e.g., Forrest v. Brinker
Int’l Payroll Co., 511 F.3d 225, 229-30 (1st Cir. 2007) (collecting cases
for the proposition that words like “cunt,” “whore,” and “bitch” are “sexually
degrading, gender-specific epithets” that courts have “consistently held to
constitute harassment based upon sex”). The music also “reference[d] and
glorifie[d] prostitution,” as well as violence against women. ER-92. Thus, this
case is on par with Petrosino, Gallagher, and Reeves, for purposes of determining
whether harassment is “because of sex.” And because those appeals arose at the
summary-judgment stage, it follows a fortiori that the female
plaintiffs’ claims here should have survived a Rule
12(b)(6) motion, where the standard is merely that the complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. See, e.g., Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
In addition, that “mostly women” complained to S&S
about the music and S&S did not stop it until plaintiffs obtained an
attorney and threatened legal action, ER-93, is additional evidence permitting
the inference of sex-based discrimination against women. For instance, in Reeves, the Eleventh Circuit noted that a
reasonable jury could infer an intent to discriminate because of sex when a
female “employee complained to her employer about the humiliating and degrading
nature of the commentary about women as a group and the conduct persisted
unabated.” 594 F.3d at 811. That principle
should apply here, reinforcing the conclusion that the complaint plausibly pled
sex-based harassment as to the female plaintiffs.
2. The fact that a man also
alleged music-based sexual harassment does not negate the female plaintiffs’
claims.
In concluding that the female plaintiffs’ music-based “claim”
was “fatally flawed,” the district court relied heavily on the fact that “both
men and women were offended by the” music. ER-17, ER-21. Under the court’s
logic, so long as S&S subjected employees to music that at least one man
considered offensive based on his sex, then to similarly expose women to
misogynistic music could not, as a matter of law, constitute “discriminat[ion]”
“because of . . . sex” under Title VII. In effect, the court treated
plaintiffs as though they had pleaded themselves out of court because one of
them was a man, and they asserted that the music offended men, in addition to women.
See generally 5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2022)
(explaining that a “plaintiff has pleaded himself or herself out of federal
court” where “the complaint itself clearly demonstrate[s] that whatever
interpretation is given to the facts the plaintiff does not have a claim that
is legally redress[a]ble” or “there is some insuperable bar to securing
relief”). The court’s approach in this regard, however, misconstrues both the
appropriate legal framework, and the nature of plaintiffs’ factual allegations.
First, as a legal matter, the relevant case law leaves open
the possibility that an employer may create or tolerate discriminatory working
conditions as to both men and women. In Steiner v. Showboat Operating Co., 25 F.3d
1459 (9th Cir. 1994), for example, this Court rejected an employer’s argument,
much like S&S’s here, that because the alleged harasser abused both men and
women, the harassment could not, as a matter of law, constitute discrimination
based on sex. Steiner, 25 F.3d at 1463. “[E]ven if [the harasser]
used sexual epithets equal in intensity and in an equally degrading manner
against male employees,” this Court explained, “he cannot thereby ‘cure’ his
conduct toward women.” Id. at 1464.
Indeed, Steiner refused to “rule
out the possibility that both men and women” may “have viable claims . . . for
sexual harassment” based on the same harasser’s conduct. Id.
And in Swinton
v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001), a race harassment case, this
Court emphasized that the focus must be on the individual plaintiff. This Court
held that the plaintiff, who was Black, was not “required to prove that white
employees were not subject to similar harassment.” Swinton, 270 F.3d at 807. That the
harasser also engaged in offensive conduct towards “racial or ethnic groups
other than African-Americans does not excuse the fact that he racially harassed
Swinton.” Id. In short, Swinton held that the employer’s “status
as a purported ‘equal opportunity harasser’ provides no escape hatch for liability.”
Id.; see also McGinest, 360 F.3d at 1117-18 (similar).
Moreover, the Supreme Court’s analysis in Bostock v. Clayton County, 140 S. Ct. 1731
(2020), provides helpful insights into the correct analytical approach
here. The Bostock Court explained
that “Title VII liability is not limited
to employers who, through the sum of all of their employment actions, treat the
class of men differently than the class of women.” 140 S. Ct. at 1742. “Instead,” the Court
wrote, “the law makes each instance of discriminating against an individual
because of that individual’s sex an independent violation,” and thus an
employer who discriminates against both men and women because of sex “doesn’t
diminish but doubles its liability.” Id.
at 1742-43, 1748. Thus, here, the district court erred in assuming that either
women could viably claim discrimination because of sex, or men could do so, but
that such claims are mutually exclusive as a matter of law.
Second, as a factual matter, the court erred in viewing
the music as a single, monolithic set of material that could either be deemed
discriminatory towards women based on their sex, or against men based on theirs,
but not both. The court’s analysis fails to appreciate that different songs,
and even different lyrics within a single song, could contain sex-specific
language that is, by turns, demeaning towards both men and women. In that
event, it could well be that men and women endured work conditions that
were discriminatory because of their sex. And here, plaintiffs plausibly
alleged that the music discriminated against both men and women based on their
respective genders.
B. The district court erred in
dismissing the male plaintiff’s music-based sexual harassment claim with
prejudice.
The complaint alleges that the music discriminated
against men—including the male plaintiff, Anthony Baker—based on sex “because
of the manner in which [it] portrayed men, and their relationship with women,”
and because the men felt powerless to “protect women [from] being openly abused
on a daily basis.” ER-84, ER-92. Although these allegations are not as robust
as the allegations concerning women, to survive a Rule 12(b)(6) motion, this Court has made
clear that a complaint need not “contain ‘detailed factual allegations.’” Sheppard v. David Evans & Assocs., 694
F.3d 1045, 1048-49 (9th Cir. 2012) (quoting Iqbal,
556 U.S. at 678).
Taking the allegations in the complaint as true and
construing them in the light most favorable to Baker, as is required (see
supra p. 3 n.2), it is plausible that the music contained lyrics that were
demeaning to men, in addition to women—particularly given that the sexual
violence the music portrayed may well have cast men as pimps, murderers, or
rapists. Without the benefit of discovery, which would have revealed the
music’s content in detail, it was premature to dismiss Baker’s sex harassment
claim.
At a minimum, the district court should have granted plaintiffs
leave to amend to augment the complaint’s allegations of lyrics that were
demeaning to men. As the court itself recognized, courts should “freely” “grant
leave to amend” “‘when justice so requires.’” ER-20 (quoting Fed. R. Civ. P. 15(a)(2)). In district court,
the only reason S&S offered against allowing plaintiffs leave to amend is
that any such amendment would be futile because plaintiffs had already “admit[ted]”
that the music “offended ‘members of both genders’ alike.” ER-65, ER-67. And
where, as here, a district court denies leave to amend based on futility, this
Court reviews that decision de novo for legal error. See, e.g., Cohen v. ConAgra Brands, Inc., 16 F.4th
1283, 1287 (9th Cir. 2021).
As discussed above, see supra pp. 22-24, an
amendment providing additional factual allegations that the music contained
lyrics that were demeaning to men would not be legally futile, as that could
constitute “discriminat[ion]” “because of . . . sex” under
Title VII as to Baker. And although
S&S would in that event be discriminating against both men and women because
of sex, that would not eliminate its Title
VII exposure, but would instead “double[] it.” Bostock, 140 S. Ct. at 1741.
For the foregoing reasons, the district court’s judgment
should be vacated and the case should be remanded for further proceedings.
Respectfully submitted,
gWENDOLYN
YOUNG REAMS
Acting General Counsel
JENNIfer
s. goldstein
Associate General Counsel
Anne
Noel Occhialino
Acting Assistant General Counsel
/s/
Philip M. Kovnat
PHILIP
M. KOVNAT
Attorney, Appellate Litigation
Services
Office of General Counsel
Equal Employment Opportunity
Commission
131 M St. NE, Fifth Floor
Washington, DC 20507
(202) 921-2702
philip.kovnat@eeoc.gov
June 15, 2022