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Employer's response to third party's
sexual advances can independently
create a hostile work environment.

Fried v. Wynn Las Vegas (9th Cir 11/18/2021)
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."

Fried 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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