Fried v. Wynn Las Vegas, LLC, No. 20-15710 (9th Cir. 2021)
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Fried worked as a manicurist, 2005-2017. Fried complained about female manicurists receiving most of the appointments and that other male manicurists also complained. In 2017, Fried became frustrated and threw a pencil at a computer because customers were requesting female manicurists more often than male manicurists. His manager disciplined him and commented that he might want to find other work. He alleges that his coworkers and customers made harassing comments and that he was told to finish a pedicure for a male customer who had solicited him for sex. Fried filed suit under Title VII, 42 U.S.C. 2000e, alleging sex discrimination, retaliation, and hostile environment.
The Ninth Circuit reversed the summary judgment against Fried. A reasonable factfinder could decide that Fried’s employer created a hostile work environment. 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 that the employer knew or should have known about. While comments made by a manager and coworkers on two occasions were insufficiently severe or pervasive to support a hostile work environment claim, an employer’s response to unwelcome sexual advances toward an employee can independently create a hostile work environment. Fried’s manager failed to take immediate corrective action and also directed Fried to return to the customer and complete his pedicure. The district court should reconsider the cumulative effect of the coworkers’ comments.
Court Description: Employment Discrimination. The panel reversed the district court’s summary judgment against Vincent Fried on his claim for hostile work environment in violation of Title VII, and remanded. The panel concluded that a reasonable factfinder could decide that Fried’s employer Wynn Las Vegas created a hostile work environment at the salon where he worked as a manicurist. To establish that he was subjected to a hostile work environment, Fried was required to prove that: (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 working environment. The panel held that 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 that the employer knew or should have known about. To determine whether an environment is sufficiently hostile or abusive to violate Title VII, a court must consider all the circumstances, including the frequency of the discriminatory 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 V. WYNN LAW VEGAS 3 The panel agreed with the district court that comments made by a manager and coworkers on two occasions were insufficiently severe or pervasive to support a hostile work environment claim. The panel held, however, that an employer’s response to a third party’s unwelcome sexual advances toward an employee can independently create a hostile work environment. Here, the manager’s response to Fried’s report that a customer had sexually propositioned him should have prevented entry of summary judgment in Wynn’s favor because the manager not only failed to take immediate corrective action, but also directed Fried to return to the customer and complete his pedicure. The panel also reversed the district court’s ruling that coworkers’ breakroom comments on the customer’s sexual proposition were insufficiently severe or pervasive to support Fried’s claim. The panel instructed the district court on remand to reconsider the cumulative effect of the coworkers’ comments.
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