FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

V I N C E N T F R I E D , Plaintiff-Appellant
,

v.

WY N N L A S V E G

A S , L LC, D efendant-Appellee. No. 20-15710

D.C. No. 2:18-cv-00689-APG-BNW

OPINION

Appeal from

the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Argued and Subm itted May 5, 2021 Seattle, W ashington

Filed Novem

ber 18, 2021

B efore: Morgan Christen and Mark J. Bennett, Circuit Judges, and Roslyn O. Silver, * District Judge.

Opinion by Judge Christen

* The H onorable Roslyn O. Silver, Senior United States District Judge for the District of Arizona, sitting by designation.F R I E D V

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SUMMARY * *

Employment Discrimination

The panel reversed the district court’s summ ary judgm ent aga i n s t Vincent Fried on his claim for hostile work environm ent in violation of Title VII, and rem anded.

The panel concluded that a reasonable f actfinder could decide that Fried’s em

ployer Wy n n Las Vegas created a hostile w ork environm ent at the salon where he worked as a
m anicurist. To establish that he was subjected t o a hostile work environm ent, Fried was required to prov e that: (1) he

was subjected to v erbal or physical conduct of a sexual nature; (2) the conduct was unwelcom e; and (3) the conduct

was sufficiently severe or pervasive to alter the conditions o f

em ploym ent and create an abusive working environm en t. The panel held that it is well established that an em ployer can create a h o stile w ork environm ent by failing to take imm ediate and corrective action in response to a coworker’s

or third party’s sexu a l harassm ent or racial discrim ination th a t the em

ployer knew or should have known about. T o determ ine whether an environm ent is sufficiently hostile o r abu s iv e to violate Title VII, a court m ust consider all the circum stances, including the frequency of the discrim inatory

c onduct; its severity; whether it is physically threatenin g o r hum iliating, o r a me r e offensive utterance; and whether it

u n r e a s o n a b l y i n t e r f

e r e s w i t h a n e mp l o y e e ’ s w o r k perform ance.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.F R I E D V

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The p anel agreed w ith the district court that comm ents

m ade by a m an a g er and coworkers on two occasions were insufficientl y s e vere or pervasive to support a hostile work

env i r on ment claim

. The panel held, however, that an
e mployer’s response to a third party’s unwelcom e sexu al advances toward an e mployee can independently create a hostile work environm ent. Here, the m anage r ’ s response to Fried’s report that a custom er had sexually propositioned him sh o uld have p revented entry of summ ary judgm ent in Wynn ’s favor because the m anager not only failed to take imm ediate corrective action, but also directed Fried to return to the custom er and com

plete h is pedicure. The panel also reversed th e district court’s ruling that coworkers’ breakroo m
comm ents on the custom e r ’ s sexual proposition were insufficientl y s evere or pervasive to support Fried’s claim

. The pan e l i n structed the d istrict court on rem and to

reco n sid e r the cum

ulative effect of the coworkers’ co m m ents.

C OUNSEL

Michael P. Balaban (argued), Law Offices o f M i c hael P. Balaban, Las Vegas, Nevada, for Plaintiff-Appellant.

Jen J. Sarafina (argued) and Da r e E. Heisterm an, Kam er Zucker Abbott, Las Vegas, Nevada, for Defendant-Appellee.F R I E D V

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OPINION
CHRISTEN, Circuit Judge:

Vincent Fried appeals the district court’s orde r gr a nting

summ ary judgm ent to Wynn Las V egas (Wynn) on Fr ied’s claim for hostile work environm en t i n violation of Title VII

o f the Civil Rights Act of 1964. 1 Because a reason ab le f actfinder could decide that F ried’s em ployer created a h o stile work environm ent, we reverse the d ist rict court’s judgm ent and rem and.

I

Fried w orked as a m anicurist at a salon in the Wynn Hotel in Las Vegas, Nevada, from April 2005 to July 2017. His perform ance revie ws show that he m et or exceeded expectations, and Fried received eight cert i fi c ates of m erit b as e d on positive comm ents from guests, extraordinary perform ance, or otherwise “going above and beyond.”

Fried alleges that he com plained to m anagem ent about fem ale m ani curists receiving m ost of the appointm ents, and that other m ale m anicurists com plaine d ab o ut this as well. 2 T h o u g h appointm ents were generally allocated to m an icu rists based on a system Fried designed to balance the assignm ents,

1 Fried also appeals the district court ’s ord er granting summ ary judgm ent to W ynn on his claim s f or sex d i scrim ination and retaliation pursuant to Title VII. W e affirm t he dism issal of those claim s in a concurrently filed m em orandum disposition.

2 At the summ ary judgm ent stage, we view the f acts in the light m o st favorable to Fried. See Ellison v

. Br a d y , 924 F.2d 872, 8 73 (9th Cir. 1991).F R I E D V

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Fried testifi e d that his fem ale coworkers received m ore ap p o intm ents, d

u e in part to custom ers specifically requestin g fem ale m anicurists.

On one occasion in March 2017, Fried becam e frustrated and thre w a pencil at a com puter because custom ers were requesting fe ma le m anicurists m ore often than m ale

m anicurists. Fried alleges that a m anager at the salon, Sarah Barajas, d i s c i plined him for throwing the pencil and

comm ented that he m ight want to do som ething else for work. According to Fried, Barajas rem arked that Fried was working in a “fem ale job related environm ent” and suggested that he look for other em

ploym ent in the culinary field. On another occasion a f

em ale cowork er told F ried and another m ale

m anicurist that if they wanted to get m ore clients, they should

we a r wi gs to look like wom en. Fried alleges that his coworkers m ade sim ilar comm ents to him on other occasions, and h is m ale cowo rk e r s agreed that they were subjected to sim ilar rem arks.

In June 2 017, a m ale custom er cam e into the salon for a pedicure and Fried w as assigned to provide the service. The custom er asked Fried to give h im a m assage in the custom er’s hotel room and said he had m assage oil. When Fried responded, “we don’t do that kind of service,” th e c u stom er
m ade an explicit sexual proposition, asking if Fried wanted to hav e s ex and “rub[] [the custom er’s] penis.” The custom er told Fried “it [is] wonderful to have sex with another m an.”

Fried imm ediately went to the salon’s front d esk, reported the custom er’s conduct to Barajas, an d s t a ted that he no longe r felt com fortable interacting with the custom er. According to Fr i e d
, Barajas directed him to “just go [ finish the pedicure] and get it over with.” Fried com p l i e d, b u tF R I E D V

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t e s t i f i e d t h a t h e f

e l t “ a b s o l u t e l y h o r r i b l e ” a n d “uncom fortable” during the twenty or so m inutes it to ok to finish the cu s tom er’s pedicure. In total, the custom er m ade five or six inappropriate sexual references to Fried during the thirty-five- to f

o rty -f iv e-m in ute p edicure, and g rabbed o r held Fried’s hand or arm f

or about a m inute when Fried escorted the custom er out o f the salon aft e r com p leting the p edicure. The custom er did not otherwise touch Fried.

Fried confronted Barajas after the custom er left and told her that they needed to discuss what had happened. Barajas resp onded that she was busy dealing with em ails but would talk to h im “when she got a chance.” When Fried followed up later that day, Barajas again told him that she had a lot o f

em ails to review and asked t o d iscuss the incident another tim e. Fried told Barajas that he would report the incident to the hotel’s hum an resources departm ent, but he did not d o so, and there is no evidence that F ried and Barajas ever discussed the incident again.

About one week later, Fried w as in the salon’s breakroom and asked his coworke r s whether B arajas was o n duty because he still wanted to speak with her about the custom er who h ad propositioned him

. A fem ale coworker told Fried he should not be upset about the incident and should instead take it as a com

plim ent. When Fried responded that he was not happy with that rem ark, another fe m a l e coworker allegedly said, “s hut up Vincent, you know you want sex from [the custom er], you keep m entioning it.”

On April 16, 2018, Fried filed suit ag a i n s t Wynn in the United States District Court for the District o f Nevada. His

com plaint included claim s pursuant to Title VII, 42 U.S.C. § 2000e et seq. , for sex discrim ination, retaliation, and hostileF R I E D V

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work environm ent

. Wynn m o ved f or summ ary judgm ent, and the court dism issed Fried’s claim s and entered final judgm ent in Wynn’s favor. Fried tim ely appealed. W e have jurisdiction pursuant to 2 8 U .S.C. § 1291. We affirm the dism issal of Fried’s sex-discrim ination and retaliation claim s in a concurrently fi l e d m em orandum disposition, but we
reverse the d ism issal of Fried’s h ostile work envir onm ent claim

.

II

W e review de novo the district cou rt ’ s o rder granting

summ ary judgm ent. Branch Banking & Tr. Co. v. D.M.S.I., LLC
, 871 F.3d 7 5 1
, 759 (9th Cir. 2017). W e view the evidence in the light m ost favorable to Fried an d determ ine whether ther e are any g enuine issues of m aterial fact and whether the d i s tr ict court correctly applied the relevant substantive law. S

e e Olsen v. Idaho State Bd. of Med.
, 3 6 3 F.3d 916, 922 (9th Cir. 2004). Whether Fried was subjected to a ho s t i l e work environm ent and Wynn is liable for creating a h ostile w ork environm ent are m ixed questions of law and fact that we rev ie w d e n ovo. S ee Little v. Windermere Relocation, Inc.
, 301 F.3d 958, 96 6 ( 9th Cir. 2002).

III

Fr i e d argues four incidents at the salon created a hostile work environm ent in violation of Title VII: (1) B arajas’s suggestion that h e seek em p loym ent in a field that is not a predom inantly fem ale envi r o n m ent; (2) h is coworkers’ suggestions that he should w ear a w ig; (3) Barajas’s response to his report that a custom er had sexually propositioned him ; and (4) Fried’s coworkers’ comm ents that he should take theF R I E D V

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custom er’s p roposition as a com p lim ent and that Fried actually wanted to have sex with the custom er.

Title V II of the Civil Rights Act of 1964 p r o hibits sex discrim ination, including sexual harassm ent, in em ploym ent. 42 U.S.C. § 2000e-2(a)(1); Meritor Sav. B ank, FSB v. Vinson
, 477 U.S. 57, 65–66 (1986). To succeed on his Title VII claim for h o stile work environm ent, Fried was required to establish that: (1) he was subjected to a hostile work environm ent; and (2) Wynn was liable f

or the harassm ent that caused the hostile environm ent to exist. S

ee F reitag v. Ayers
, 468 F.3d 528, 539 (9th C ir. 2006). Because the district court g ranted summ ary judgm ent to Wynn based solely on the first prong o f the claim
, we lim it our review to whether Fried was subjected to

a hostile work environm ent. To establish he was subjected to

a hostile work environm ent, Fried was required to prove that: (1) he was subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcom e; and (3) the conduct

was sufficiently severe or p ervasive to alter the conditions o f

em ploym ent and create an a

b u s iv e working environm ent. See Little , 301 F.3d at 966.

The Sup r e me Court has h eld an em ployer is liable pursuant to Title VII o nly for “its own” acts, B u rlington Indus., Inc. v. Ellerth
, 5 24 U .S. 7 42, 759 (199 8 ) ; se e also Faragher v. City of Boca R a ton , 52 4 U.S. 775, 8 0 7 (1998), but it is well established that an em ployer can create a hostile work e nv iro nm ent by f

ailing to take imm ediate and corrective

a c t i o n in response to a coworker’s or third party’s sexua l harassm ent or racial discrim ina t io n the em ployer knew o r should have known about. All fed eral circuits are in accord

on this p oint. See, e.g. , Howard v. Cook Cnty. Sheriff’s Off.
, 989 F.3d 587, 607 (7th C ir. 2021); Roy v. Correct Care Sols., LLC
, 9 1 4 F.3d 52, 57 (1st Cir. 2019); Vasquez v. E m pres sF R I E D V

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Ambulance Serv., Inc.
, 835 F.3d 267, 273–74 (2d Cir. 2016); Freeman v. D al-Ti l e Co r p

. , 750 F .3d 413, 423 (4th Cir. 2014); Hernandez v. Yellow T ransp., Inc.
, 670 F.3d 6 44, 651 (5th Cir. 2012); Malone v. Ameren UE
, 646 F. 3 d 5 12
, 517 (8th C ir. 2011); Beckford v. Dep’t of Corr.
, 60 5 F.3d 951, 957–58 (11th Cir. 2 010); H uston v. Procter & Gamble Paper Prods. Corp.
, 568 F.3d 100, 104 (3d Cir. 2009); Tad e my v. Union Pac. Corp.
, 6 14 F.3d 1 1 3 2
, 11 39 (10th Cir. 2008); Curry v. District of Colu mb i a , 195 F.3d 654, 660 (D.C. Cir. 1 99 9) ( per curiam ) ; Hafford v. Seidner
, 183 F .3d 506, 513 (6th Cir. 1999); Folkerson v. Circu s Circus Enters., Inc.
, 107 F.3d 7 54, 756 (9th Cir. 1 997); see a lso 29 C.F.R. § 1604.11(e) (providing that em ployers m a y b e liable for sexual harassm ent p er

petrated by nonem

ployees “in the

wo rkplace, where the em ployer

. . . knows or should h a v e known o f the conduct and fails to take imm ediate and appropriate corrective action”).

To determ ine whether an environm ent is suffic i e n tly hostile o r abusive to v io l a t e Tile V II, we consider “all the circum stances, including the f requency o f the discrim inatory conduct; it s severity; whether it is physically threatening o r hum iliating
, o r a m ere offensive utterance; and whether it

u n r e a s o n ab l y i n t e r f

e r e s w i t h a n e mp l o y e e ’ s w o r k perform ance.” Christian v. U mpqua Bank
, 984 F.3d 801, 809 (9th C ir. 2020) (internal quotation m arks om itted) (quoting Davis v. Team Elec. Co.
, 520 F.3d 1080, 109 5 (9th Cir. 2008)). “No t e v ery insult or harassing comm ent will constitute a h ostile work environm ent.” Ray v. Henderson
, 217 F.3d 1234, 1245 (9th Cir. 2 000). The standard for j u d gi n g hostility is m eant to “ensure that Title VII does not becom e a ‘general civility code.’” Faragher
, 524 U.S. at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc.
, 523 U.S. 75, 80 (1998)).F R I E D V

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The Suprem e Court has explained that, p roperly applied, this standard “will filter out com p laints attacking the ordinary tribulations of the workplace, such as the sporadic us e of abusive language, gender-related jokes, and o c c asional t easing.” Id. (internal quotation m arks o m itted) (quoting B. L I ND E M A N N & D. K

AD UE , S EX

U AL H AR

A S S ME N T I N E MP L O YME

N T L AW 1 75 (1 9 9 2 ) ). A hostile work environm ent “m ust be both o bjectively and subjectively offensive, one that

a reasonable person would find hostile o r ab u sive, and o ne that the victimin fact did perceive to be so.” Id. at 787.

A single inci d e nt of harassm ent “can support a claim o f h os tile work environm ent because the frequency of th e d iscrim inatory conduct is only one factor in the analy s i s ,” Little v. Windermere Relocation, Inc.
, 301 F.3d 958, 967 (9th Cir. 2002) (internal quotation m arks om itted), but for a single incident to s uffice, it “m

ust be extrem ely severe,” Brooks v. City of San Mate o , 229 F.3d 917, 9 26 (9th C ir. 2000); see also Little
, 3 01 F.3d at 967 (collecting cases). When severity is questionable, “i t is m ore appropriate to leave the

assessm ent to the fact-finder than for the court to decide the

case on summ ary judgm ent.” Davis , 520 F.3d at 1096.

A

Fried first argues that Baraj a s created a hostile work environm ent by comm enting that he should consider finding

a j o b in which the clientele is not m ostly fem ale. 3 Fried

3 W e serially d i s cuss whether the incidents Fried alleges created a hostile work environm ent because: (1) F ried presents the f our incidents in this m anner i n his b riefing; and (2) the incidents are different in kind o r severity. However, the cum ulative effect of the four incidents determ i n es whether a hostile work environm en t e x is t ed. See Christian
, 984 F.3dF R I E D V

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alleges that Barajas told him on one occasion he was “i n a fem ale job related environm ent,” suggested h e “look for other

em ploym ent in cooking in the future,” a n d said h e “m ight want to d o som ething with cooking for work. ” F ried also argues his coworkers created a hostile work environm ent by

rem arking that he and another m ale m anicurist sho u ld wear wigs if they wanted to get m ore clients or m ake m ore m oney at the salon. Fried id e n t ifi e d only two specific occasions, about a m onth apart, on which h is coworkers m ade these

c o mme n ts. The district court ruled these statem ents w ere insufficiently severe or pervasive to support a hosti l e work environm ent claim

. W e agree with the district court.

The required seve r i ty for “harassing conduct varies inversely with the pervasiveness o r frequency of the conduct.” Id

. (quoting Ellison v. Brady
, 9 2 4 F.2d 872, 878 (9th Cir. 1991)). Because Fried testified that Baraj a s m ade her comm ents on one occasion and his coworkers suggested

on two occasions that h e should wear a wig to look like a
wom an, the comm ents w o u ld h av e to be proportionately m ore
severe to m ake up for their relative infrequency. See id. The

comm en t s h e r e fall f

ar short of that m ark. Indeed, we have deem ed m

uch harsher comm ents and actions insu fficient to create a hostile work environm ent.

In Kortan v. California Youth Authority
, 217 F.3d 1104 (9th Cir. 2000), a fem ale em ployee brought a hostile work environm ent claim b a se d on her supervisor’s m isogynistic

comm ents. Id. at 1106–08. The superv i s or referred to an
em ployee as a “regina” and said that the em ployee “laughs l i ke a h y e na.” Id. at 1107. The sam e supervisor referred to another em

plo y ee as a “m adonna,” a “regina,” and a

at 809–10.F R I E D V

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“castrating bi t c h,” and to wom en generally as “bitches” and “histrionics.” Id. W e held that these crass and d enigrating

comm ents w ere not severe enough to cr e a t e a hostile work environm ent, in part because the comm ents were concentrated on one occasion. S ee id. at 1110–11.

Alm ost three years l a t e r , in Manatt v. Bank of America, NA
, 339 F.3 d 7 9 2 (9th Cir. 2003), we considered a fem ale Chinese-Am erican em

ployee’s hostile work environm ent claim based on co workers’ patently offensive racial

comm ents and acts. Id. at 794–95. On one occasion, Manatt overheard her coworkers laughing and saying “China Man” and saw them pulling “their eyes back with their fingers in an attem p t to im itate or m ock th e ap pearance o f Asians.” Id. at 795. On a different day, o ne of M a natt’s coworkers ridicul e d h er for m ispronouncing the word “Lim a” and

r eferred to her as “China wom an.” Id. Th o u g h unquestionably offensive and insensitive, we held that these gestures and comm en ts d id not create an actionable hostile work environm ent. Id. a t 7 98–99; see also, e.g. , Vasquez v. County of Los Angeles
, 349 F.3d 634, 643–44 (9th Cir. 2 003) (holding a coworker’s isolated rem arks, six m onths apart, that

an em ployee ha d “ a typical H ispanic m acho attitude” and “should consider transferring to the field because ‘Hispanics do good in the field’” were no t severe enough to create a hostile work environm ent).

The objective severity of Barajas’s comm ents about looking for a job outside of a fem ale-oriented f ield p ale in

com parison to the statem ents and conduct in Kortan
, Manatt
, and Vasquez

. T hose cases involved either sexually or racially

m otivated derogatory language; Barajas’s comm ents did not directly pertain to Fried’s sex or race. The context in which the com m ents were m ade is also im p ortant because Fried hasF R I E D V

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a degree in culinary arts, and Fried’s coworkers testified that it was well known his dream job was to own a food truck. Especially when viewed against th at backdrop, B arajas’s

comm ents suggesting that Fried “m ight want to [consider d o ing] som ething with cooking for work,” clearly d o n o t support a claim of hostile work e n vi ronm ent. F ried’s coworkers’ banter regarding wearin g w ig s is also in su f f icient. Even viewed cum

ulatively, this is the type of infrequent j oking or teasing we have held to be part of the ordina ry tribulations of the w orkplace. See EEOC v. Prospect A irport Servs., Inc.
, 621 F.3d 991, 998 ( 9 th Ci r. 2 010) (acknowledging sporadic gender-related jokes or occasional teasing do not support a hostile work environm ent claim ).

B

The third episode is m

uch m ore com

pelling. Fried alleges that Barajas responded to his report that a m ale custom er h ad sexually propositioned him by dir e cting him to return to the custom er and com

pl et e the pedicure service. F ried is clear that he d oes not seek to hold Wynn vicariously liable for the

m ale custom er’s conduct. Rather, Fried a l l e ges that his

m anager’s response, after learning about the m ale custom er’s conduct, independently created a hostile work environm ent. The d istrict court ruled that this episode was insufficient to support a hostile work environm ent claim because “Fried was not touched physically, other than a brief touch o n the arm , ” he was not alone with the custom er, and he was able to

com plete the custom er’s pedicure.

S ev eral circuit co urts, in c lu d i n g o ur o wn, have recog n ized that an em

ployer’s response to a third part y ’s unwelcom e sexual advances t oward an em ployee can independently

cre a te a hostile work environm ent. Thus, the district courtF R I E D V

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erred when it focused on the custom er’s conduct; F ried’s claim is p rem ised o n Wynn’s response to the custom er’s harassm ent.

W e explained in Brooks v. City o f San Mateo
, 2 29 F.3d 917 (9th Cir. 2000), that an em p loyer’s prom

pt co rrective response can insul a t e an em ployer from liability for an
em p l o yee’s hostile work environm ent claim

. B ro o k s rep o rted to her em ployer that a coworker “forced his hand underneath her sweater” and fond l ed her b reast. Id. at 921. The

em ployer put the coworker on adm ini s tr a tive leave the next day, began an investigation, and later init i a t e d term ination proceedings that led to the coworker’s re s ignation. Id. at 921–22. W e m a d e c l ear that while the coworker’s

e g regious conduct was relevant, the proper focus f or th e hostile work environm ent claim was the em ployer’s response to the coworker’s conduct. Id. at 9 24. Because the em ployer took corrective action right away, w e held the em ployer in Brooks w as not liable for subjecting the em ployee to a hostile work environm ent. See id. at 925–26.

In contrast to the em

ployer in Brooks
, the em ployer in Little v. Windermere Relocation, Inc.
, 301 F.3d 958 (9th Cir. 2002), not only failed to intervene after learning o f harassing

c o n duct, but also responded in ways that exacerbated the hostile work environm ent. In the process o f c onducting contract relocation work for Starbu c k s, Little learned that Starbucks was dissatisfied with its prim ary relocation provider, and she m entioned this to W inderm ere’s president. See id. at 964. The president allegedly said h e would “do whatever it t[ook] to g et th[e] account,” and encouraged Little to “do the best job she could.” Id. Little la t e r a c c e p ted a dinner invita tion from a Starbucks representative to discuss the account, but she began to f eel ill after the m eal and passedF R I E D V

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out. Id. Whe n s h e a wo ke, she found herself being sexually assaulted by the Starbucks representative. Id.

A m anagem ent-level em

ployee advised Little “not to tell anyon e i n m anagem ent” about the assault. Id. And the p er son designated in W inderm ere’s harassm ent policy as a “com p laint-receiving m anager” told Little to “try to p ut [the

a ssault] behind her” and to stop working on the S tarb u ck s account. Id. at 965. But W inderm ere’s president continued to ask Little if she was m aking progress on the ac c o un t. Id. Little eventually told the president about the assault, and his “imm ediate response was that he did not want to hear anything about it.” Id. H e to l d Little she would have to speak to his lawyer, imme d i a t ely cut her b ase p ay from $3,000 per m o nth to $2,000 per m o nth, and within a few days term inated Little’s em

ploym ent. Id. Little filed suit, alleging that W inderm ere’s reaction to her report created a hostile work environm ent, but the district court entered summ ary judgm ent in favor of W inderm ere. Id. at 965–66.

On appeal, we held that a reasonable j ury c o uld agree with Little b ecause W inderm ere failed to take imm ediate and effective rem edial action, because Little was not r e l i eved o f responsibility for the Starbucks account, a n d because Little

wa s warned she m ight suffer an adverse em ploym ent action if sh e r eported the abuse. Id. at 967. W e concluded that W inderm ere’s “actio n s rein f o rced rath er th an rem ed iated” the

s exual assault and allowed the sexual assault’s effects to perm eate Little’s work environm ent and alter it irrevocably. Id.

The Tenth Circuit has reco g ni z e d that an em ployer’s response to a custom er’s offensive conduct can create a hostile work en v i r onm ent where the response subjects anF R I E D V

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em ployee to further abuse. In Lockard v. Pizza Hut, In c

. , 162 F.3d 10 6 2 (10th Cir. 1998), L ockard, a waitress, inform ed her m anager that she did not like waiting on two particular custom ers. Id. at 1067. When th e cu s tom ers returned to the restaurant, the m anager told Lockard to wait

on the m anyway, and one o f the custom ers took the opportunity to tell Lockard that she sm elled good and grabbed her h air. Id. Lockard imm ediately reported that

c onduct to her m anager and again said she did not want t o wait on the p air. Id. The m anager d i r ec t e d : “You wait on them

. You were hired to be a waitress. You waitress

. ” I d. Lockard returned to the custom ers and one of them p ulled her hair, grabbed her breast, and put his m outh on her breast. Id. A jury found th a t Lockard established a h ostile work environm ent, id. at 1068, and the Tenth Circuit affirm ed the district court’s denial of the em p loyer’s m otion for judgm ent

a s a m atter of law, id. at 1077. The Tenth Circuit re a s on e d that the em

ployer w as liable f

or creating a hostile work environm ent because the r estaurant had notice of the custom ers’ harassing conduct, yet ordered Lo c kard to continue waiting on them

. S ee id. at 1 075 (em

p hasizing that the m anager “ p laced Ms. Lockard in an abusive and potentially d angerous situation, although he clearly had both the m eans and the authority to avoid doing so”). Rather than taking imm ediate and effective c orr ective action like the

em ployer in Brooks
, Lockard’s manager clearly conveyed that Lockard was expected to tolera t e th e custom ers’ abuse. See id.

Other circuits have h eld em ployers liable on hostile work environm ent claim s, or have denied summ ary ju d gm ent to

em ployers on such claim s, where the em ployer’s response to known harassm ent h as subjected the em ployee to further harassm ent. Se e, e.g. , Rodriguez-Hernandez v. Miranda-F R I E D V

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Vel e z , 13 2 F.3d 848, 854–55 (1st Cir. 1998) (holding a reasonable jury could find a hostile work environm ent was
cr e a t e d when a supervisor refused to intervene after a f irm client m ade sexual advances toward an em ployee, and instead “conditioned her f

uture with the com

pany on h er responding t o the unwanted sexual dem ands o f a custom er”); Crist v. Focus Homes, Inc.
, 122 F.3d 1107, 1111–12 (8th C ir. 1 997) (finding d ispute of fact as to a hostile work environ me nt prem ised on sexual harassm ent where a care facility asked a
care provider, who had reported being sexually assaulted by

a resident, to subject herself to additional offensive touching

so m anagem ent could observe the conduct); cf. Folkerson v. Circus Circus Enters., Inc.
, 107 F.3d 754, 756 (9th Cir. 1 997) ( e x p laining that “an em

ployer m ay be held liable for s ex u al harassm ent o n th e p a rt of a private individual

. . . where the

em ployer either ratifies or acquiesces in th e harassm ent by not taking imm ediate an d/or corrective action when it knew or should have known of the conduct”).

Consistent with this case law, Barajas’s response to Fried’s report that a custom er had sexually propositioned him should have prevented ent ry o f summ ary judgm ent in Wynn’s favor. Barajas not only failed to take imm ediate corr ective action, she directed F ried to return to the custom e r and

com plete his p edicure. Her response to Fried’s report (“just go do it a n d get it over w ith”), was akin to the m anager’s response in Lockard
, 162 F.3d at 1067 (“You were hired to be

a waitress. You waitress.”). Barajas’s direction d iscounted and effectively condoned the custom er’s sexual harassm ent and, as was the case in Lock ard
, went a step further by conveying that Fried was expected to tolerate the custom er’s harassm ent as part of his job.F R I E D V

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Wy nn argues that the facts of this case do not rise to th e level of creating a hostile w ork environm ent, but because the focus is on Barajas’s reaction, we have no trouble concluding that reasonable jurists could disagree with Wynn on this point. Fried’s adm issible evidence clearly sat isfied the subjective com

ponent of the hostile w ork environm ent claim because Fried described feeling “absolutely horribl e” and “uncom fortable” while perform ing the pedi c ure. As for the

o b j e c t i v e c o mp o n e n t , F r i e d t e s t i f i e d t h a t i t t o o k approxim ately twenty m inutes to com plete the pedicure after the custom er explicitly sexually propositioned him an d it is clear he w as subjected to extended personal contact with the custom er dur i n g the tim e it took to com plete the service. It also appears the custome r continued to harass Fried after he returned to com

plete the pedicure. 4 Reasonable jurors could d ecid e th at Fried’s m anager condoned the cu s to m er’s co n d u ct and conveyed th a t sexual harassm ent would be tolerated in the salon because s h e t o ok n o action to stop it—such as requiring the custom er to leave the prem ises imm ediately. T o the contrary, Barajas directed Fried to re-subject h im self to the harasser for an extended period of tim e. S ee C hristian v. Umpqua Bank
, 984 F.3d 801, 8 09 (9th C ir. 2020) (holding we consider “all the circum stances,” including whether the discrim inatory conduct was “physically threatening o r hum iliating” (quoting Davis
, 520 F .3d at 1095)). Un der our precede n t , the district court erred by ruling on summ ary judgm ent that Barajas’s response t o Fried’s report of the custom er’s harassm ent was insufficient as a m atter of law to create a hostile work environm ent.

4 F ried testified t

hat he reported the custom er’s proposition “im m ediately”; that Barajas directed him to com plete the service; and that, in all, the custom er m ade approxim ately five or six sexually inappropriate statem ents during the pedicure.F R I E D V

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C
Finally, Fried argues that h is coworkers’ insensitive breakroom comm entary that he should take the custom er’s sexual proposi t i o n a s a com plim ent and that Fried h ad welcom ed the custom er’s sexual advance, contributed to the salon’s hostile work environm ent. Th e d istrict court ruled these comm ents were insufficiently severe or pervasiv e t o support Fried’s claim

. But in light o f our ruling that Barajas’s response to Fried’s report of the custom er’s sexual proposition could be sufficient o n its own to create a hostile work en v i r o nm ent, we reverse the district court’s ruling on these related breakroom rem arks. See Christian
, 984 F.3d at 8 09–10 (explaining the cum u lative effect of conduct m ust be considered).

IV

Fried f ailed to establish that his m anager’s suggestion that he work in another i n dustry and his coworker’s suggestion that he should wear a wig created a hostile work environm ent. But a reasonable factfinder could conclude that the m anager’s response to Fr i e d ’s report o f a custom er’s overt sexual proposition subjected Fried to a hostile work environm ent. We therefore reverse the district court’s order granting

summ ary judgm ent in favor of Wynn on Fried’s hostile work environm ent claim

. On rem and, the district court shall reconsider the cumulative effect of the related com m ents by Fried’s coworkers that he should take the custom er’s sexual proposition as a complim ent or that he welcom ed it.

REVERSED and REMANDED.