TOP TIP: Employers Must Protect Employees from Customer Harassment

Under Title VII, it is not enough to ensure that employees (and managers) are not harassing one another – employers must also ensure that employees are not being harassed by third parties, including customers, as the U.S. Court of Appeals for the Ninth Circuit recently reminded us.

In Fried v. Wynn Las Vegas, a male manicurist told a salon manager that the male customer to whom he was giving a pedicure had just sexually propositioned him. The manager allegedly told him to “just go [finish the pedicure] and get it over with.” The manicurist complied, but during the 20 minutes that it took to complete the pedicure, the customer made additional inappropriate sexual comments and also grabbed the manicurist’s arm or hand as he was leaving the salon. The manicurist attempted to discuss the matter with his manager several times later that day, but she responded that she was too busy. A female co-worker told him he should take the customer’s proposition as a compliment, while another told him that he really wanted to have sex with the customer since he kept talking about it.

The employee eventually filed suit against the salon based on this, as well as some other incidents that the Ninth Circuit found were not a violation of Title VII. However, the Ninth Circuit did find that the employer’s response to the employee’s complaint about customer harassment could create a hostile work environment. The Ninth Circuit noted that other Circuits (namely, the First, Eighth and Tenth) have all found employers liable for hostile work environment harassment where their response to known harassment subjected the employee to further harassment. In this case, the manager’s response “discounted and effectively condoned the customer’s sexual harassment and, …went a step further by conveying that [the manicurist] was expected to tolerate the customer’s harassment as part of his job.”

This case is a good reminder that employers must protect employees from third party harassment. In addition, it is possible that the manager’s (lack of) response was based, in part, on the fact that it was a male employee complaining of sexual harassment. Further, it is hard to imagine that the co-workers would have made those comments if the victim had been a female. It is important to remember that both men and women can be sexually harassed, and that the employer must take prompt and effective action to stop such harassment, regardless of the sex of the victim or the harasser.