Is the playing of obscene and misogynistic rap music in the workplace discriminatory on the basis of sex if it offends women?  A former Tesla employee has asked the U.S. District Court for Nevada to answer “yes” to that question after filing suit against her former employer alleging that, among other things, the obscene and misogynistic rap music, as well as the actions and statements made by her co-workers related to that music, amounted to sexual harassment.

Interestingly, in December 2021, the Nevada court dismissed a similar music-based claim against S&S Activewear that was brought by both male and female plaintiffs, concluding that the plaintiffs did not plausibly allege discrimination “because of sex” in violation of Title VII, since the music offended both men and women.  The court also reasoned that the music-based claims should be dismissed because the music was played throughout the employer’s entire warehouse and thus did not target or single out any individual or group.  The plaintiffs have appealed the district court’s ruling to the U.S. Court of Appeals for the Ninth Circuit, raising the issue of whether the music played in the warehouse could constitute sex discrimination under Title VII.

In the Tesla case, however, only one woman filed suit, stating that she was subject to a hostile work environment when Tesla allowed its employees to play offensive music which referred to women as “bitches”, included graphic references to sex, and contained other offensive references.  The former employee alleged that management personnel heard the music, but didn’t stop it even after the employee complained to Tesla’s Human Resource personnel.  The employee alleged that the hostile work environment was so severe that it forced her to quit (i.e. “constructive discharge”).

While the ultimate answer of whether offensive music can create a sex-based hostile work environment claim under Title VII is pending before the Ninth Circuit and the District of Nevada, the Tesla lawsuit and the amicus curiae brief from the EEOC filed in support of the Plaintiffs-Appellants in the S&S Activewear case make clear that employees and the EEOC may find music like the ballads of Too $hort and 2 Live Crew to be hostile and/or offensive.  And although these cases have focused on sex discrimination, we note that rap music also may contain racially-charged language that some employees could find objectionable. Accordingly, these cases should serve as another reminder to employers to be proactive in addressing employee complaints relating to potentially offensive actions or practices in the workplace – particularly those related to a protected characteristic, such as sex or race – and to consider revising workplace policies such as anti-harassment policies to proactively address possibly offensive actions (yes, even if most employees enjoy the music) in the workplace before a complaint is lodged.