Salon Response to Customer Proposition May Have Created Hostile Work Environment

A male manicurist who was propositioned for sex by a male customer could proceed on his sexual-harassment claim against the salon based on the dismissive response of the female salon manager and co-workers, the 9th U.S. Circuit Court of Appeals ruled.

The plaintiff worked as a manicurist at a salon in the Wynn Hotel in Las Vegas from April 2005 to July 2017. His performance reviews showed that he met or exceeded expectations, and he received eight certificates of merit based on outstanding performance.

The plaintiff alleged that he and other male manicurists complained to management about female manicurists receiving most of the appointments, though appointments were generally allocated based on a system he designed to balance assignments.

The plaintiff claimed that customers more often specifically requested female manicurists, which on one occasion caused him to throw a pencil at a computer in frustration. The female salon manager disciplined him and commented that he might want to work somewhere else since it was a female-oriented environment. She suggested that he look for work in the culinary field.

On another occasion, a female co-worker told the plaintiff and another male manicurist that if they wanted to get more clients, they should wear wigs to look like women. The plaintiff and other male manicurists alleged that co-workers made similar comments on other occasions.

In June 2017, a male customer came into the salon for a pedicure and the plaintiff was assigned to him. The customer asked the plaintiff to give him a massage in his hotel room. When the plaintiff refused, the customer explicitly propositioned him and requested sexual services.

The plaintiff immediately went to the salon's front desk, reported the customer's conduct to the manager and stated that he no longer felt comfortable interacting with the customer. The manager directed him to finish the pedicure and "get it over with."

The plaintiff complied but felt uncomfortable while finishing the pedicure. In total, the customer made five or six inappropriate sexual references to the plaintiff during the 35- to 45-minute pedicure, and grabbed or held the plaintiff's hand or arm for about a minute when the plaintiff escorted him out after the pedicure.

After the customer left, the plaintiff confronted the manager and told her that they needed to discuss what had happened. The manager responded that she was busy dealing with e-mails but would talk to him when she got a chance. When the plaintiff followed up later that day, the manager again said that she had many e-mails to review and asked to discuss the incident another time. The plaintiff said that he would report the incident to human resources, but never did so.

About one week later, the plaintiff was in the salon's breakroom and asked his co-workers whether the manager was on duty because he still wanted to speak with her about the incident. A female co-worker said he should not be upset and should instead take the incident as a compliment. When the plaintiff replied that he was not happy with that remark, another female co-worker allegedly said, "shut up" and "you know you want sex from [the customer], you keep mentioning it."

On April 16, 2018, the plaintiff filed suit against Wynn under Title VII of the Civil Rights Act of 1964 for sex discrimination, retaliation and hostile work environment. Wynn moved for summary judgment, and the court dismissed the plaintiff's claims and entered final judgment for Wynn.

On appeal, the 9th Circuit affirmed the dismissal of the plaintiff's sex-discrimination and retaliation claims but reversed the dismissal of part of the plaintiff's harassment claim. The plaintiff claimed sexual harassment from his manager's advice to look for a job outside of a female-oriented field, but the 9th Circuit found that these comments were not sufficiently severe to show harassment.

However, the 9th Circuit found that the employer's response to the customer's sexual proposition could have created a hostile work environment. It found that the dismissive attitude of the female manager and co-workers, and the manager's insistence that the plaintiff continue working with the customer, could establish severe and pervasive harassment. The court thus reversed the trial court and remanded the claim for further proceedings.

Fried v. Wynn Las Vegas LLC, 9th Cir., No. 20-15710 (Nov. 18, 2021).

Professional Pointer: Employers are generally not liable for harassment or inappropriate customer conduct but can be liable for how they react to it. Whenever an employee reports customer harassment, the employer should investigate and protect the employee from further harm.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.