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Employer's response to third party's
sexual advances can
create a hostile work environment.
Fried v. Wynn Las Vegas (9th
Sent to Custom Alerts™
subscribers on 11/18/2021
Although a customer's sexual
proposition itself might not create a hostile work environment,
"an employer’s response to a third party’s unwelcome sexual
advances toward an employee can independently create a
hostile work environment."
Fried, a male manicurist, sued
claiming a hostile work environment in violation of Title VII. The
9th Circuit reversed summary judgment for the employer, saying, "a
reasonable factfinder could conclude that the manager’s response
to Fried’s report of a customer’s overt sexual proposition
subjected Fried to a hostile work environment."
alleged that a male customer made an explicit sexual proposition,
and when he reported that to his manager, she said to go finish
the pedicure and get it over with. In total, the customer made
five or six inappropriate sexual references to Fried during the
thirty-five- to forty-five-minute pedicure, and grabbed or held
Fried’s hand or arm for about a minute when Fried escorted the
customer out of the salon after completing the pedicure.
Fried confronted the manager after the customer left and told her
that they needed to discuss what had happened. The manager
responded that she was busy dealing with emails but would talk to
him “when she got a chance.” When Fried followed up later that
day, the manager again told him that she had a lot of emails to
review and asked to discuss the incident another time. That
discussion never occurred.
The court said "it is well
established that an employer can create a hostile work environment
by failing to take immediate and corrective action in response to
a coworker’s or third party’s sexual harassment or racial
discrimination the employer knew or should have known about. All
federal circuits are in accord on this point." "Reasonable jurors
could decide that Fried’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. To the contrary, [the
manager] directed Fried to re-subject himself to the harasser for
an extended period of time."
Thus, the court held that this
case can go to trial.
Fried also alleged his coworkers
commented that he should take the customer’s sexual proposition as
a compliment and that Fried had welcomed the customer’s sexual
advance. The court held that the trial court should reconsider the
cumulative effect of those comments and whether they contributed
to the hostile work environment.
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