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Employee Provided Sufficient Evidence To Support Hostile Work Environment Claim Based On Employer’s Failure To Correct Third Party’s Harassment
Jennifer Christian began working for Umpqua Bank (Umpqua) in 2009 as a Universal Associate. In late 2013, a customer asked Christian to open a checking account for him. Afterward, the customer began visiting the bank to drop off notes for Christian. These notes stated that Christian was the most beautiful girl he had ever seen and that he would like to go on a date with her. Christian and her colleagues began to feel concerned, and Christian told the customer that she was not going to go on a date with him. However, the behavior continued and the customer eventually sent Christian a long letter. Christian showed the letter to her manager, a corporate trainer, and other colleagues. The corporate trainer warned her to be careful.
Around the same time, Christian learned from colleagues that the same customer had visited another branch of the bank repeatedly asking how he was going to get a date with her. The corporate trainer advised Christian to call the police, and she became increasingly concerned for her safety. Nonetheless, on Valentine’s Day, the customer sent Christian flowers and a card. Christian again shared the card with her manager, the corporate trainer, and other colleagues.
Subsequently, Christian told her manager that she did not want the customer to be allowed to return to the bank. According to Christian, the manager promised he would not allow the customer to return, but never advised the customer of that decision. Despite Christian’s efforts, the customer continued to deliver her letters and visit the bank. On one occasion, the customer also attended a charity event where Christian was volunteering.
A few days after the charity event, the customer returned to the bank to reopen his account that another branch had closed. Rather than ask the customer to leave, Christian’s manager instructed her to open a new account for him. After the customer continued coming to the bank with no apparent banking business to do, Christian reported the situation to the regional manager of another region.
Christian called in sick and refused to return to work until a no-trespassing order was implemented to bar the customer from visiting the bank. However, her manager ordered her to come to work and directed her to “hide in the break room” if the customer returned. Christian also requested in writing that the bank close the customer’s account and obtain a no-trespassing order against him. In addition, Christian asked that she be transferred to a different bank location, even though the only position available was for fewer hours per week. While Umpqua eventually closed the customer’s account and transferred Christian to a new location, she resigned. She said that her doctor advised that it was bad for her health to continue working there.
Christian sued the bank for gender discrimination in violation of Title VII, among other claims. Title VII prohibits sex discrimination in employment. To establish sex discrimination under a hostile work environment theory, an employee must show she was subjected to sex-based harassment that was sufficiently severe or pervasive to alter the conditions of employment, and that her employer was liable for this hostile work environment. To determine whether conduct is sufficiently severe or pervasive, courts consider the totality of the circumstances, including 1) the frequency of the conduct; 2) its severity; 3) whether it is physically threatening or humiliating, and 4) whether it unreasonably interferes with an employee’s work performance.
The district court entered judgment in favor of Umpqua, finding that no reasonable juror could conclude the customer’s conduct was serve or pervasive enough to create a hostile work environment. Christian appealed.
On appeal, the Ninth Circuit found that the district court erred in three respects. First, the district court erred in isolating the various harassing incidents. The harassment Christian endured involved the same type of conduct, occurred relatively frequently, and was perpetrated by the same individual. Further, Christian experienced the harassment not as isolated and sporadic incidents, but rather as an escalating pattern of behavior that caused her to feel afraid in her own workplace.
Second, the Ninth Circuit concluded the district court erred in declining to consider incidents in which Christian did not have any direct, personal interactions with the customer, such as when he sent her flowers or would sit in the bank lobby. Specifically, the court noted that Title VII does not impose any such requirement for direct, personal interactions.
Finally, the Ninth Circuit determined the district court erred in neglecting to consider evidence of interactions between the customer and third parties, such as the customer’s repeated visits to the other bank branch to badger Christian’s colleagues about her. Offensive comments do not all need to be made directly to an employee for a work environment to be considered hostile. Christian learned from her colleagues that the customer was persistently contacting them to obtain information about her. It did not matter she did not witness that conduct firsthand.
In addition, the court concluded that Umpqua was liable for this harassment. An employer may be held liable for sexual harassment on the part of a private individual, such as a customer if the employer either ratifies or acquiesces in the harassment by not taking immediate or corrective actions. The court noted that while Umpqua may have decided not to allow the customer back after he sent Christian flowers, Umpqua did not implement that decision by actually informing the customer not to return or by closing his account. Additionally, Umpqua did not take any other action to end the harassment, such as creating a safety plan for Christian or discussing the situation with bank security. Moreover, while the bank eventually transferred Christian to a different location and closed the customer’s account, the Court noted that Umpqua’s “glacial pace” was too little, too late. It also noted that the bank placed the bulk of the burden on Christian herself.
Accordingly, the Ninth Circuit determined that the district court improperly entered judgment for Umpqua on Christian’s Title VII gender discrimination claim.
Christian v. Umpqua Ban (9th Cir. Dec. 31, 2020) 984 F.3d 801.
In hostile work environment cases, courts will consider the totality of circumstances and not view potentially harassing events in isolation. An employee does not need to personally witness harassment. Simply learning of harassing conduct from colleagues may be sufficient. Employers should promptly and seriously consider solutions to effectively prevent further harassment, and take swift action to implement all reasonable solutions to protect employees.