Sexual Harassment Hostile Work Environment Claim Survives Against Wynn Hotel

In Fried v. Wynn Las Vegas, LLC, 20-15710, 2021 WL 5366989 (9th Cir. (Nev.) Nov. 18, 2021), the court reversed and remanded a district court decision granting defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.

Plaintiff, a male manicurist who worked at a salon in the Wynn Hotel in Las Vegas, asserted four incidents that he alleged created a hostile work environment:

(1) Barajas’s [a manager at the salon] suggestion that he seek employment in a field that is not a predominantly female environment; (2) his coworkers’ suggestions that he should wear a wig; (3) Barajas’s response to his report that a customer had sexually propositioned him; and (4) Fried’s coworkers’ comments that he should take the customer’s proposition as a compliment and that Fried actually wanted to have sex with the customer.

After reviewing the pertinent “black letter” law, the court held that items one and two did not give rise to a claim.

It reached a different conclusion, however, as to the third item:

The third episode is much more compelling. Fried alleges that Barajas responded to his report that a male customer had sexually propositioned him by directing him to return to the customer and complete the pedicure service. Fried is clear that he does not seek to hold Wynn vicariously liable for the male customer’s conduct. Rather, Fried alleges that his manager’s response, after learning about the male customer’s conduct, independently created a hostile work environment. The district court ruled that this episode was insufficient to support a hostile work environment claim because “Fried was not touched physically, other than a brief touch on the arm,” he was not alone with the customer, and he was able to complete the customer’s pedicure.

Several circuit courts, including our own, 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. Thus, the district court erred when it focused on the customer’s conduct; Fried’s claim is premised on Wynn’s response to the customer’s harassment.

We explained in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), that an employer’s prompt corrective response can insulate an employer from liability for an employee’s hostile work environment claim. Brooks reported to her employer that a coworker “forced his hand underneath her sweater” and fondled her breast. Id. at 921. The employer put the coworker on administrative leave the next day, began an investigation, and later initiated termination proceedings that led to the coworker’s resignation. Id. at 921–22. We made clear that while the coworker’s egregious conduct was relevant, the proper focus for the hostile work environment claim was the employer’s response to the coworker’s conduct. Id. at 924. Because the employer took corrective action right away, we held the employer in Brooks was not liable for subjecting the employee to a hostile work environment. See id. at 925–26.

In contrast to the employer in Brooks, the employer in Little v. Windermere Relocation, Inc., 301 F.3d 958 (9th Cir. 2002), not only failed to intervene after learning of harassing conduct, but also responded in ways that exacerbated the hostile work environment. In the process of conducting contract relocation work for Starbucks, Little learned that Starbucks was dissatisfied with its primary relocation provider, and she mentioned this to Windermere’s president. See id. at 964. The president allegedly said he would “do whatever it t[ook] to get th[e] account,” and encouraged Little to “do the best job she could.” Id. Little later accepted a dinner invitation from a Starbucks representative to discuss the account, but she began to feel ill after the meal and passed out. Id. When she awoke, she found herself being sexually assaulted by the Starbucks representative. Id.

A management-level employee advised Little “not to tell anyone in management” about the assault. Id. And the person designated in Windermere’s harassment policy as a “complaint-receiving manager” told Little to “try to put [the assault] behind her” and to stop working on the Starbucks account. Id. at 965. But Windermere’s president continued to ask Little if she was making progress on the account. Id. Little eventually told the president about the assault, and his “immediate response was that he did not want to hear anything about it.” Id. He told Little she would have to speak to his lawyer, immediately cut her base pay from $3,000 per month to $2,000 per month, and within a few days terminated Little’s employment. Id. Little filed suit, alleging that Windermere’s reaction to her report created a hostile work environment, but the district court entered summary judgment in favor of Windermere. Id. at 965–66.

On appeal, we held that a reasonable jury could agree with Little because Windermere failed to take immediate and effective remedial action, because Little was not relieved of responsibility for the Starbucks account, and because Little was warned she might suffer an adverse employment action if she reported the abuse. Id. at 967. We concluded that Windermere’s “actions reinforced rather than remediated” the sexual assault and allowed the sexual assault’s effects to permeate Little’s work environment and alter it irrevocably. Id.

The Tenth Circuit has recognized 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. In Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998), Lockard, a waitress, informed her manager that she did not like waiting on two particular customers. Id. at 1067. When the customers returned to the restaurant, the manager told Lockard to wait on them anyway, and one of the customers took the opportunity to tell Lockard that she smelled good and grabbed her hair. Id. Lockard immediately reported that conduct to her manager and again said she did not want to wait on the pair. Id. The manager directed: “You wait on them. You were hired to be a waitress. You waitress.” Id. Lockard returned to the customers and one of them pulled her hair, grabbed her breast, and put his mouth on her breast. Id. A jury found that Lockard established a hostile work environment, id. at 1068, and the Tenth Circuit affirmed the district court’s denial of the employer’s motion for judgment as a matter of law, id. at 1077. The Tenth Circuit reasoned that the employer was liable for creating a hostile work environment because the restaurant had notice of the customers’ harassing conduct, yet ordered Lockard to continue waiting on them. See id. at 1075 (emphasizing that the manager “placed Ms. Lockard in an abusive and potentially dangerous situation, although he clearly had both the means and the authority to avoid doing so”). Rather than taking immediate and effective corrective action like the employer in Brooks, Lockard’s manager clearly conveyed that Lockard was expected to tolerate the customers’ abuse. See id.

Other circuits have held employers liable on hostile work environment claims, or have denied summary judgment to employers on such claims, where the employer’s response to known harassment has subjected the employee to further harassment. See, e.g., Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 854–55 (1st Cir. 1998) (holding a reasonable jury could find a hostile work environment was created when a supervisor refused to intervene after a firm client made sexual advances toward an employee, and instead “conditioned her future with the company on her responding to the unwanted sexual demands of a customer”); Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111–12 (8th Cir. 1997) (finding dispute of fact as to a hostile work environment premised on sexual harassment where a care facility asked a care provider, who had reported being sexually assaulted by a resident, to subject herself to additional offensive touching so management could observe the conduct); cf. Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997) (explaining that “an employer may be held liable for sexual harassment on the part of a private individual … where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective action when it knew or should have known of the conduct”).

Consistent with this case law, Barajas’s response to Fried’s report that a customer had sexually propositioned him should have prevented entry of summary judgment in Wynn’s favor. Barajas not only failed to take immediate corrective action, she directed Fried to return to the customer and complete his pedicure. Her response to Fried’s report (“just go do it and get it over with”), was akin to the manager’s response in Lockard, 162 F.3d at 1067 (“You were hired to be a waitress. You waitress.”). Barajas’s direction discounted and effectively condoned the customer’s sexual harassment and, as was the case in Lockard, went a step further by conveying that Fried was expected to tolerate the customer’s harassment as part of his job.

The court also held that the fourth item – “his coworkers’ insensitive breakroom commentary that he should take the customer’s sexual proposition as a compliment and that Fried had welcomed the customer’s sexual advance” – “contributed to the salon’s hostile work environment.” The court held that in light of its ruling that his manager’s response to plaintiff’s report of the customer’s sexual proposition could be sufficient on its own to create a hostile work environment, reversal of the district court’s ruling on these related breakroom remarks was warranted.

In support, the court cited authority for the proposition that “the cumulative effect of conduct must be considered.”

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