WORK WITH US
Manicurist Can Pursue HWE Claim After Manager Directed Him To Continue With Pedicure Despite Customer’s Sexual Propositions
Vincent Fried worked as a manicurist at a salon in the Wynn Hotel (Wynn) in Las Vegas, Nevada from April 2005 to July 2017.
Fried alleged that he complained to management that female manicurists received more appointments than males. In March 2017, Fried threw a pencil at a computer out of frustration with the disparity. His manager disciplined him and commented that he might want to pursue other work. Specifically, she mentioned that Fried was working in a “female job-related environment.” Another coworker told him that if he wanted more clients, he should wear a wig to look like a woman.
In June 2017, Fried was assigned to provide a pedicure to a male customer. The customer asked Fried to give him a massage in his hotel room and said he had massage oil. When Fried responded they do not do that kind of service, the customer made an explicit sexual proposition. Fried immediately reported the conduct to the same manager. Although Fried reported he no longer felt comfortable interacting with the customer, the manager directed him to finish the pedicure and “get it over with.” In total, the customer made five or six inappropriate sexual references to Fried during the pedicure. Fried attempted to speak with the manager about the incident on two occasions afterward, but she told him she would talk to him “when she got a chance.” Fried never reported the incident to Human Resources.
A week later, Fried was in the salon’s breakroom. A female coworker told Fried he should not be upset about the interaction and should take it as a compliment. Another female coworker allegedly said that Fried wanted to engage in sexual activity because he kept mentioning it.
Fried then brought suit against Wynn for sex discrimination, retaliation, and hostile work environment (HWE) in violation of Title VII of the Civil Rights Act of 1964. The district court granted Wynn’s motion for summary judgment. Fried appealed.
In this portion of the appeal, the Ninth Circuit considered Fried’s HWE claim. Title VII prohibits sex discrimination, including sexual harassment, in employment. To establish a case for HWE under Title VII, an employee must show: (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 work environment. To determine whether an environment is sufficiently hostile or abusive, a court must consider all of the circumstances including the frequency of the 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.
Fried argued that four incidents created an HWE: (1) the manager’s suggestion he seeks employment in a field that is not female-related; (2) his coworker’s suggestion that he should wear a wig; (3) his manager’s response to his report that a customer had sexually propositioned him; and (4) his coworker’s remark that he should take the customer’s proposition as a compliment and that Fried actually wanted to engage in the sexual activity.
On appeal, the court determined that comments the manager and coworker made about the “female related job environment” and the wig was not sufficiently severe or pervasive to support an HWE. The court noted that because these comments occurred on only three occasions, the comments would need to be proportionately more severe to make up for their relative infrequency. The court concluded that even viewed cumulatively, this type of infrequently joking or teasing was part of the ordinary tribulations of the workplace.
However, the court concluded the manager’s response to the customer’s unwelcome sexual advances could independently create an HWE. The court reasoned that it is well established that an employer can create an HWE by failing to take immediate and corrective action in response to sexual harassment or racial discrimination that the employer knew or should have known about. Here, the manager not only failed to take immediate corrective action, but she also directed Fried to return to the customer and complete the service. The manager’s direction not only discounted and condoned the customer’s sexual harassment but also conveyed that Fried was expected to tolerate it as part of his job.
In addition, the court concluded that the coworkers’ comments on the customer’s sexual proposition could also be severe or pervasive enough to support Fried’s claim. The court noted that a reasonable jury could find these comments created an HWE because the cumulative effect of the coworkers’ and manager’s conduct must be considered.
For these reasons, the court concluded that a reasonable factfinder could decide that Wynn created an HWE at the salon. Thus, the Ninth Circuit reversed the district court’s decision and remanded the case for further proceedings.
Fried v. Wynn Las Vegas, LLC, 2021 WL 5366989 (9th Cir. Nov. 18, 2021) unpublished.
This case shows how a manager’s conduct sets the tone in a workplace. The law has long held that customers can create an HWE for employees and that employers have a duty to protect their employees from harassing customers. Yet, the manager’s failure to take the manicurist’s complaints seriously, and her direction that the manicurist endures the customer’s harassment, wrongly communicated to the staff that harassment was part of the job. Supervisors and managers must be trained to take complaints of harassment seriously and to address them promptly.