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.