• Dean Royer

November 2021 employment law decisions

Dismissal of sexual harassment claim reversed based on employer’s response to report of customer harassment.

November 18, 2021, Ninth Circuit Court of Appeals, Vincent Fried v. Wynn Las Vegas, LLC: The trial court dismissed Fried’s hostile work environment claim under federal law (summary judgment). On appeal, the Ninth Circuit agreed with the trial court that comments about looking for a job outside of a female-oriented field and coworker banter regarding wearing wigs were not sufficiently severe or pervasive. But with respect to Fried’s supervisor directing Fried to return to a customer and complete a pedicure service after Fried reported that the customer had sexually propositioned him, the appellate court found that an employer’s response to a third party’s unwelcome sexual advances toward the employee can create a hostile work environment. It concluded that summary judgment was improper based on this incident because a reasonable jury could decide the supervisor condoned the customer’s sexual harassment and expected Fried to tolerate the harassment as part of his job. In addition, the Ninth Circuit found that coworkers’ commentary that Fried should take the customer’s sexual proposition as a compliment must be considered with the supervisor’s response to the harassment report to determine whether a hostile work environment was created.

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