FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHANIE SHARP; CYNTHIA No. 21-17138

MARTINEZ; PATRICIA SPEIGHT;
LAURA VIRAMONTES GARCIA; D.C. No.
REBECCA GAROUTTE; 3:20-cv-00654-
ANTHONY BAKER; SHARENE MMD-CLB
WAGONER; RUBY LOPEZ
COLOCHO,
Plaintiffs-Appellants, OPINION

v.

S&S ACTIVEWEAR, L.L.C.,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted February 9, 2023

San Francisco, California

Filed June 7, 2023

Before: M. Margaret McKeown, Jay S. Bybee, and Patrick

J. Bumatay, Circuit Judges.

Opinion by Judge McKeown

2 SHARP V. S&S ACTIVEWEAR, L.L.C.

SUMMARY*

Employment Discrimination

The panel vacated the district court’s dismissal, for

failure to state a claim, of a Title VII sexual harassment
claim against apparel maker S&S Activewear and remanded.
Eight former employees, seven women and one man,
alleged that S&S permitted its managers and employees to
routinely play “sexually graphic, violently misogynistic”
music throughout its warehouse.
Aligning with the decisions of other circuits, the panel
held that music with sexually derogatory and violent content,
played constantly and publicly throughout the workplace,
can foster a hostile or abusive environment and thus
constitute discrimination because of sex. The panel
disagreed with the district court’s reasoning that the music’s
offensiveness to both men and women and audibility
throughout the warehouse nullified any discriminatory
potential. The panel vacated the district court’s dismissal,
with prejudice and without leave to amend, of plaintiffs’
music-based claim and instructed the district court to
reconsider, on remand, the sufficiency of plaintiffs’
pleadings in light of two key principles: First, harassment,
whether aural or visual, need not be directly targeted at a
particular plaintiff in order to pollute a workplace and give
rise to a Title VII claim. Second, the challenged conduct’s
offensiveness to multiple genders is not a certain bar to
stating a Title VII claim.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 SHARP V. S&S ACTIVEWEAR, L.L.C. 3

COUNSEL

Mark Mausert (argued) and Sean McDowell, Mark Mausert

Law Office, Reno, Nevada, for Plaintiffs-Appellants.
Robert Cooper (argued), Wilson Elser Moskowitz Edelman
& Dicker LLP, Los Angeles, California; Sheri Tome and
Taylor A. Buono, Wilson Elser Moskowitz Edelman &
Dicker LLP, Las Vegas, Nevada; for Defendant-Appellee.
Anne N. Occhialino (argued), Acting Assistant General
Counsel; Phil M. Kovnat, Attorney, Appellate Litigation
Services; Jennifer S. Goldstein, Associate General Counsel;
Gwendolyn Young Reams, Acting General Counsel; Office
of General Counsel, Equal Employment Opportunity
Commission; Washington, D.C.; for Amicus Curiae Equal
Employment Opportunity Commission.
4 SHARP V. S&S ACTIVEWEAR, L.L.C.

OPINION

McKEOWN, Circuit Judge:

In its landmark decision in Meritor Savings Bank, FSB

v. Vinson, the Supreme Court first recognized sexual
harassment as a violation of Title VII of the Civil Rights Act
of 1964, which prohibits covered employers from
discriminating against any individual because of sex. 477
U.S. 57, 64, 73 (1986); 42 U.S.C. § 2000e-2(a)(1). The
Court held that a plaintiff may establish such a violation “by
proving that discrimination based on sex has created a
hostile or abusive work environment.” Meritor, 477 U.S. at
66. This appeal calls on us to consider whether music with
sexually derogatory and violent content, played constantly
and publicly throughout the workplace, can foster a hostile
or abusive environment and thus constitute discrimination
because of sex.
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.
 SHARP V. S&S ACTIVEWEAR, L.L.C. 5

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.
Sharp eventually filed suit, alleging that the music and
related conduct created a hostile work environment in
violation of Title VII. The district court granted S&S’s
motion to dismiss and denied leave to amend the music
claim, reasoning that the music’s offensiveness to both men
and women and audibility throughout the warehouse
nullified any discriminatory potential. The court
countenanced S&S’s argument that the fact that “both men
and women were offended by the work environment”
doomed Sharp’s Title VII claim.
We disagree. In this preliminary posture, plaintiffs
should have had their allegations taken as true or, at
minimum, been granted leave to amend. We vacate the
decision below and instruct the district court to reconsider
the sufficiency of Sharp’s pleadings in light of two key
principles: First, harassment, whether aural or visual, need
not be directly targeted at a particular plaintiff in order to
6 SHARP V. S&S ACTIVEWEAR, L.L.C.

pollute a workplace and give rise to a Title VII claim.

Second, the challenged conduct’s offensiveness to multiple
genders is not a certain bar to stating a Title VII claim. An
employer’s “status as a purported ‘equal opportunity
harasser’ provides no escape hatch for liability.” Swinton v.
Potomac Corp., 270 F.3d 794, 807 (9th Cir. 2001).
I. PROCEDURAL HISTORY
Sharp filed suit in federal district court after receiving
right to sue letters from the Equal Employment Opportunity
Commission (“EEOC”). Sharp claimed that the music and
related conduct constituted sexual harassment under Title
VII. In response, S&S filed a motion to dismiss for failure
to state a claim under Federal Rule of Civil Procedure
12(b)(6). S&S argued that the challenged conduct did not
constitute discrimination because of sex since both men and
women were offended by, and all employees were exposed
to, the music. Sharp defended the claim by emphasizing that
offensiveness to men and women does not neutralize or
invalidate discriminatory conduct. In the alternative, Sharp
sought leave to amend.
The district court agreed with S&S and granted the
motion to dismiss. The court held that Sharp failed to state
an actionable Title VII claim because there was no allegation
“that any employee or group of employees were targeted, or
that one individual or group was subjected to treatment that
another group was not.” Because the music offended men
and women alike, the district court reasoned, it could not be
the basis of a sexual harassment claim. Deeming Sharp’s
music-based claim “fatally flawed,” the district court
dismissed it with prejudice and without leave to amend. The
court did, however, grant Sharp leave to amend regarding the
 SHARP V. S&S ACTIVEWEAR, L.L.C. 7

“cursory allegations of other offensive conduct independent

of the offensive music.”
The court granted Sharp’s Rule 54(b) motion for entry of
judgment on the music-based claim. The court explained
that the claims regarding conduct by male employees were
“sufficiently factually dissimilar” to the music-based claim
to merit separation on appeal. The issue on appeal is whether
the district court erred as a matter of law in dismissing the
music-based claim because the court did not view that claim
as actionable since the music offended both female and male
employees and the music did not target any specific
employee or group of employees.
II. ANALYSIS
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,
8 SHARP V. S&S ACTIVEWEAR, L.L.C.

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
 SHARP V. S&S ACTIVEWEAR, L.L.C. 9

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.”
A. Sexually Derogatory Music Audible Throughout
the Workplace Can Create a Hostile Work
Environment.
A workplace saturated with sexually derogatory content
can constitute harassment “because of sex.” We have
consistently sustained Title VII claims challenging a
10 SHARP V. S&S ACTIVEWEAR, L.L.C.

workplace “polluted with insult and intimidation.” Reynaga,

847 F.3d at 688; see also Steiner, 25 F.3d at 1463–64. “A
raft of case law . . . establishes that the use of sexually
degrading, gender-specific epithets, such as ‘slut,’ ‘cunt,’
‘whore,’ and ‘bitch,’ . . . has been consistently held to
constitute harassment based upon sex.” Forrest v. Brinker
Int’l Payroll Co., LP, 511 F.3d 225, 229 (1st Cir. 2007)
(internal quotation marks and citation omitted). Even if
audible to all, lyrics loaded with such sexist slurs expose
female employees to uniquely “disadvantageous terms or
conditions of employment.” See Oncale, 523 U.S. at 80
(quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)).
Thus, the sort of “repeated and prolonged exposure to
sexually foul and abusive music” that Sharp alleges falls
within a broader category of actionable, auditory harassment
that can pollute a workplace and violate Title VII.
Confirming this approach, EEOC guidelines broadly
define “[h]arassment on the basis of sex” to include
“verbal . . . conduct of a sexual nature” that “has the purpose
or effect of unreasonably interfering with an individual’s
work performance or creating an intimidating, hostile, or
offensive working environment.” 29 C.F.R. § 1604.11(a).
Although not binding, these guidelines “constitute a body of
experience and informed judgment to which courts and
litigants may properly resort for guidance.” Meritor, 477
U.S. at 65 (citations omitted).
Our conclusion aligns with the decisions of our sister
circuits. In Reeves v. C.H. Robinson Worldwide, Inc., an en
banc panel of the Eleventh Circuit confronted the issue of
music as a form of workplace harassment. The court held
that a female employee challenging the radio programming
played in her office could proceed to trial on her Title VII
claim. 594 F.3d at 803–05. Reeves alleged that her male co-
 SHARP V. S&S ACTIVEWEAR, L.L.C. 11

workers fostered a sexually hostile environment through a

number of behaviors, including routinely playing a “crude
morning show” from a “central office radio” and “regularly
[singing] songs about gender-derogatory topics.” Id. at 803–
04. Reeves’s efforts to change the radio station, turn down
the volume, or bring in her own radio to “drown out” the
offensive sounds were all to no avail. Id. at 805–06.
Concluding that there was sufficient evidence to present a
jury question, the Eleventh Circuit stressed, “[W]ords and
conduct that are sufficiently gender-specific and either
severe or pervasive may state a claim of a hostile work
environment, even if the words are not directed specifically
at the plaintiff.” Id. at 811. The court went on to explain
that “a member of a protected group cannot be forced to
endure pervasive, derogatory conduct and references that are
gender-specific in the workplace, just because the workplace
may be otherwise rife with generally indiscriminate vulgar
conduct.” Id. at 810.
The Eleventh Circuit’s opinion in Reeves built on
decisions from the Second, Fourth, and Sixth Circuits, which
hold that sights and sounds that pervade the work
environment may constitute sex discrimination under Title
VII.1 In Petrosino v. Bell Atlantic, the Second Circuit

1
The Sixth and Tenth Circuits have also considered music-based
allegations as a relevant factor in hostile work environment claims but
ultimately decided the cases on other grounds. See Slayton v. Ohio Dep’t
of Youth Servs., 206 F.3d 669, 678 (6th Cir. 2000) (discussing the
persistent playing of “misogynistic rap music” as part of plaintiff’s Title
VII claim); Lockard v. Pizza Hut, 162 F.3d 1062, 1072 (10th Cir. 1998)
(declining to reach whether a supervisor playing “the sexually explicit
song ‘Freak Me’ on the jukebox” could carry a hostile work environment
claim because plaintiffs’ allegations of other offensive conduct were
alone sufficient).
12 SHARP V. S&S ACTIVEWEAR, L.L.C.

concluded that a jury could reasonably find sex

discrimination where “sexually offensive comments and
graffiti” were ubiquitous in the workplace. 385 F.3d 210,
222 (2d Cir. 2004). The court emphasized, “[t]he fact that
much of this offensive material was not directed specifically
at Petrosino—indeed, her male co-workers would likely
have traded sexual insults every morning and defaced
terminal boxes with sexual graffiti regardless of Petrosino’s
presence . . . —does not, as a matter of law, preclude a jury
from finding that the conduct subjected Petrosino to a hostile
work environment based on her sex.” Id. Instead, the court
held that a claim may survive when the conduct “was
uniformly sexually demeaning and communicated the
message that women as a group were available for sexual
exploitation by men.” Id.
Similarly, in Ocheltree v. Scollon Productions, Inc., the
Fourth Circuit held that male employees’ “sex-laden and
sexist talk and conduct” constituted sexual harassment of a
company’s sole female employee, even though “it could
have been heard or seen by anyone present in the shop and
was equally offensive to some of the men.” 335 F.3d 325,
332 (4th Cir. 2003) (en banc) (cleaned up). While the music
may be offensive to all, the Fourth Circuit held that a
reasonable jury could find it “particularly offensive to
women” and “intended to provoke [the plaintiff’s] reaction
as a woman.” Id.
The Sixth Circuit in Gallagher v. C.H. Robinson
Worldwide, Inc. rejected the shipping company’s defense
that employees’ use of slurs like “bitches” and “whores” was
“common and indiscriminate” and thus not discriminatory
toward the female plaintiff. 567 F.3d 263, 270–71 (6th Cir.
2009). The court emphasized, “[t]he natural effect of
exposure to such offensive conduct is embarrassment,
 SHARP V. S&S ACTIVEWEAR, L.L.C. 13

humiliation and degradation, irrespective of the harasser’s

motivation.” Id. at 271. Thus, the court concluded, a work
environment polluted with words or behaviors that are
“explicitly sexual and patently degrading of women” can
violate Title VII and so it was unnecessary to “otherwise
show that the conduct evinces anti-female animus.” Id. at
270–71.
We have applied parallel principles to hostile work
environment claims premised on race discrimination. See
Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998)
(noting that the same analytical standard applies to hostile
workplace claims on the basis of race or sex). For instance,
in Woods v. Graphic Communications, we deemed the
workplace atmosphere “unquestionably polluted” where a
Black plaintiff “was surrounded by racial hostility, and
subjected directly to some of it.” 925 F.2d 1195, 1202 (9th
Cir. 1991). And, in McGinest v. GTE Service Corp., we held
that a Black plaintiff sufficiently alleged a hostile work
environment based, in part, on hearing “racial insults” and
seeing “racist graffiti . . . in the bathroom and on
equipment.” 360 F.3d 1103, 1114–16 (9th Cir. 2004).
Importantly, “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” and “a
white worker[] was also targeted.” Id. at 1117. In that case,
we said that “racial animus” may “motivate[] a harasser”
even if the offensive comments “were superficially directed”
at the white worker. Id. at 1118.
Collectively, then, precedent from our own circuit and
other courts of appeals guides us to recognize “sexually
graphic, violently misogynistic” music as one form of
harassment that can pollute a workplace and give rise to a
Title VII claim. That all plaintiffs in these cases prevailed at
14 SHARP V. S&S ACTIVEWEAR, L.L.C.

the summary judgment stage and beyond underscores the

viability of such claims and the inappropriateness of the Rule
12(b)(6) dismissal here. Like Reeves, Sharp alleges
persistent exposure to derogatory, gender-specific words
broadcast throughout the workplace. Although the district
court interpreted the “warehouse wide” playing of music as
an indication of neutrality, this fact may better reflect the
music’s invidious pervasiveness. Because S&S’s
management was unreceptive to complaints, Sharp was
forced to tolerate the music and the toxic environment as a
condition of continued employment. And, even if the
ubiquitous music was not (and need not have been) targeted
toward any particular woman, female employees allegedly
experienced the content in a unique and especially offensive
way. Whether sung, shouted, or whispered, blasted over
speakers or relayed face-to-face, sexist epithets can offend
and may transform a workplace into a hostile environment
that violates Title VII.
B. Male and Female Plaintiffs Can Coexist in the
Same Title VII Action.
In a pathbreaking case, the Supreme Court categorically
held that “Title VII’s prohibition of discrimination ‘because
of . . . sex’ protects men as well as women.” Oncale, 523
U.S. at 78 (alteration in original). As a practical matter, it
should be no surprise that sexually charged conduct may
simultaneously offend different genders in unique and
meaningful ways. See Steiner, 25 F.3d at 1464 (while
“words from a man to a man [may be] differently received
than words from a man to a woman,” harassing both men
and women cannot “cure” bad conduct and “do[es] not rule
out the possibility that both men and women . . . have viable
claims against [their employer] for sexual harassment”).
Thus, in general terms, a male employee may bring a hostile
 SHARP V. S&S ACTIVEWEAR, L.L.C. 15

work environment claim alongside female colleagues. In

this case, because we do not reach the sufficiency of Sharp’s
allegations, we need not weigh the relative strength of the
sole male plaintiff’s claims. Instead, we conclude that the
district court erred in holding that the coexistence of male
and female plaintiffs dooms a hostile work environment
claim.
S&S’s arguments to the contrary hinge on an “equal
opportunity harasser” defense that we simply do not
countenance. An employer cannot find a safe haven by
embracing intolerable, harassing conduct that pervades the
workplace. Crediting such an approach would leave a
gaping hole in Title VII’s coverage. And, again, targeting a
specific person is not a prerequisite for a viable claim under
Title VII. “[O]ur case law is clear that the fact that an
individual ‘consistently abused men and women alike’
provides no defense to an accusation of sexual harassment.”
McGinest, 360 F.3d at 1118 (quoting Steiner, 25 F.3d at
1463). In Steiner v. Showboat Operating Co., we reviewed
a casino’s attempted invocation of this defense and
concluded, “even if [the supervisor] used sexual epithets
equal in intensity and in an equally degrading manner
against male employees, he cannot thereby ‘cure’ his
conduct toward women.” 25 F.3d at 1464. And,
importantly, we “d[id] not rule out the possibility that both
men and women working at Showboat have viable claims
against [the supervisor] for sexual harassment.” Id.
It follows that an employer cannot evade liability by
cultivating a workplace that is broadly hostile and offensive.
As the Eleventh Circuit explained in Reeves, “Title VII does
not offer boorish employers a free pass to discriminate
against their employees specifically on account of gender
just because they have tolerated pervasive but indiscriminate
16 SHARP V. S&S ACTIVEWEAR, L.L.C.

profanity as well.” 594 F.3d at 810. Concrete incidents of

sex discrimination should not drown in a sea of incivility.
This same principle holds true in the context of race
discrimination: We have held that a white coworker’s “use
of racially charged words to goad both black and white
employees makes his conduct more outrageous, not less so.”
McGinest, 360 F.3d at 1118. And, in Swinton v. Potomac
Corp., we emphasized that the Black plaintiff was not
“required to prove that white employees were not subject to
similar harassment.” 270 F.3d at 807. After all, allowing an
employer to “escape liability because it equally harassed
whites and blacks [or men and women] would give new
meaning to equal opportunity.” Id. Rather than embrace
such an absurd interpretation, we resolve that the music’s
alleged offensiveness to both male and female employees is
no obstacle to Sharp’s suit.
III. CONCLUSION
Heeding the core principles of sexual harassment law,
we conclude that the district court improperly dismissed
Sharp’s music claim. We vacate the decision below and
direct the district court to consider the sufficiency of the
pleadings in the first instance in light of this opinion.
VACATED and REMANDED.