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FAILING TO RESPOND TO A CUSTOMER HARASSING AN EMPLOYEE CAN LEAD TO A HOSTILE WORK ENVIRONMENT CLAIM


On November 18, 2021, the Ninth Circuit Court of Appeals issued a decision in Fried v. Wynn Las Vegas, LLC, __ F.4th __ (9th Cir. 2021). The issue before the court is whether an employee can bring a hostile work environment claim if the employee reports that a customer is sexually propositioning the employee, and the employee’s manager fails to respond appropriately to the complaint. The Ninth Circuit reversed the trial court’s decision granting summary judgment in favor of the employer, finding that at trial, a jury could conclude that the manager’s lack of response in this situation may be grounds to assert a hostile work environment claim. The court further instructed the trial court to reconsider the cumulative effect of related comments by the plaintiff’s coworkers that he should take the customer's sexual proposition as a compliment and that he welcomed it. The decision serves as a cautionary tale on the importance of properly training managers and supervisors on how to respond to harassing conduct from a third party.

1. Employee Complains Of Harassing Conduct

The plaintiff was a former manicurist at a salon in the Wynn Las Vegas resort. He sued his employer for sex discrimination, retaliation, and creating a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. In addition to alleging that more favorable treatment of female manicurists created a hostile work environment, the plaintiff based his claim against the employer on allegations stemming from a single incident with a customer.

The plaintiff alleged that in 2017, a male customer who was assigned to the plaintiff made an explicit sexual proposition. The plaintiff claims he immediately went to his manager to report the customer’s conduct and that he no longer felt comfortable interacting with the customer. In response, the manager allegedly told the plaintiff to “just go [finish the pedicure] and get it over with.” The plaintiff further alleges that during the twenty minutes it took to finish the pedicure, the customer made five or six inappropriate sexual references to the plaintiff, which made the plaintiff feel horrible and uncomfortable. He also alleges that the customer grabbed or held the plaintiff’s hand or arm for about a minute when he escorted the customer out of the salon after the pedicure.

After the customer left, the plaintiff claims he approached the manager to discuss what had happened, but she claimed she was busy and would talk to him later. The plaintiff claims he tried later that day to speak with his manager, but she again brushed him off. A week later, two female coworkers allegedly told the plaintiff that he should take the customer’s proposition as a “compliment” and accused the plaintiff of wanting to have sexual relations with the customer.

2. Requirements For A Hostile Work Environment Claim

To establish he was subjected to a hostile work environment in the sexual harassment context under federal law, the plaintiff needed to prove that: (1) he was subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Whether an environment is sufficiently hostile or abusive depends on the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Because the frequency of the conduct is only one factor in the analysis, a single incident of harassment can support a hostile work environment claim if it is extremely severe.

3. Trial Court Dismisses Claim

The trial court granted the employer’s motion for summary judgment on all of the plaintiff’s claims. The trial court found that the customer incident was insufficient to support a hostile work environment claim because (1) the plaintiff was not touched physically other than a brief touch on the arm; (2) the plaintiff was not alone with the customer; and (3) the plaintiff was able to complete the customer’s pedicure. The trial court also ruled that the coworker’s comments were insufficiently severe or pervasive to support the plaintiff’s claim.

4. The Court Of Appeal’s Decision

The Ninth Circuit held that the trial court erred when it focused on the customer's conduct and not the employer’s response to that conduct. The court noted that several circuit courts, including the Ninth Circuit, have recognized that an employer’s response to a third party’s unwelcome sexual advances toward an employee can independently create a hostile work environment. The court noted that an employer’s response to a customer’s offensive conduct can create a hostile work environment where the response subjects an employee to further abuse or harassment.

The court determined that summary judgment was improper in the plaintiff’s case because the manager not only failed to take immediate corrective action, but also directed the plaintiff to return to the customer for an extended period of time to complete the pedicure. The court further pointed out that these actions discounted and effectively condoned the sexual harassment. Moreover, they went a step further by conveying that the plaintiff should tolerate the customer’s harassment as part of his job.

The court noted that at trial a jury could find the manager’s actions as alleged by the plaintiff do not rise to the level of creating a hostile work environment. However, the court also reasoned that a jury could also decide that the plaintiff’s manager condoned the customer’s conduct and conveyed that sexual harassment would be tolerated in the salon because she took no action to stop it (such as requiring the customer to leave the premises immediately). The court further held that in light of its ruling on the manager’s response, the cumulative effect of the related coworker remarks must be considered in determining whether that created a hostile work environment.

5. 5. Conclusion

While the Ninth Circuit’s decision in Fried does not mean that the failure to immediately respond to a customer’s purported harassment instantly establishes a hostile work environment, the decision does demonstrate that a single incident of a customer engaging in harassing behavior, if left unchecked, can create an issue that could only be resolved by a jury at trial. An employer’s prompt corrective response, on the other hand, can help insulate an employer from liability for an employee’s hostile work environment claim. The Ninth Circuit’s decision reinforces the importance of training employees and managers to recognize and respond to third-party harassment quickly and appropriately.

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