Fried v. Wynn Las Vegas, 18 F.4th 643 (9th Cir. 2021)

Vincent Fried, a manicurist at a salon in the Wynn Hotel in Las Vegas, was sexually propositioned by a customer. Fried immediately went to his manager to report the customer, at which point the manager allegedly told him to “just go [finish the pedicure] and get it over with” despite the lewd comments. Fried continued with the pedicure, but after the customer left, he approached his manager to discuss the incident but she said she had a lot of “emails to review” and asked to discuss the matter at another time.

The district court granted Wynn’s summary judgment motion, dismissing Fried’s claim for hostile work environment under Title VII. However, the Ninth Circuit reversed, holding that the manager’s lack of response to the harassment may have created a hostile work environment. The Ninth Circuit analyzed evidence of the separate incidents upon which Fried relied to establish a hostile work environment:

  • A comment by Fried’s manager that he should consider finding another job (such as cooking) in which the clientele is not mostly female. In addition, on two different occasions, Fried’s female coworkers commented that Fried and another male coworker should wear wigs if they wanted to get more clients or make more money at the salon; the Court held that these statements were insufficiently severe or pervasive to create a hostile work environment.
  • The manager’s inaction in response to Fried’s complaint about the customer, however, was sufficient to create a hostile work environment because of the manager’s failure to take immediate corrective action against harassment by a third party (the customer).

The Ninth Circuit concluded that “reasonable jurors could decide that Fried’s manager condoned the customer’s conduct and conveyed that sexual harassment would be tolerated in the salon because she took no action to stop it – such as requiring the customer to leave the premises immediately.” On remand, the Ninth Circuit directed the district court to reconsider the cumulative effect of the manager’s inaction along with “related comments” by Fried’s coworkers that he should take the customer’s sexual proposition as a “compliment” and that he welcomed it.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020;, co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.