Labor & Employment Law Daily Sexual harassment claim revived based on bank’s slow response to customer’s harassment of employee
Wednesday, January 6, 2021

Sexual harassment claim revived based on bank’s slow response to customer’s harassment of employee

By George Basharis, J.D.

Allegations by a former bank employee that her employer failed to take effective action to address harassment by a customer raised genuine issues of material fact.

Reversing a district court’s grant of summary judgment against a former bank employee’s Title VII and state law gender harassment claims, the Ninth Circuit determined that allegations by the employee that a customer repeatedly pestered her, asked her on dates, and sent her notes and letters declaring that they were “soulmates” and “were meant to be together” were sufficiently severe or pervasive that if true created a hostile work environment. Moreover, the employee’s contentions that the bank was slow to respond to the alleged harassment, shifted the burden to her to contact the customer to ask him to stop contacting her, and transferred her to another bank branch for lower pay created genuine issues of material fact as to whether the bank acquiesced in the customer’s harassment (Christian v. Umpqua Bank, December 31, 2020, Paez, R.).

Harassment by customer. In late 2013, a customer asked the employee to open a checking account for him. Soon thereafter, the customer began to drop off small notes to her. The notes stated that the employee was the “most beautiful girl” the customer had ever seen and asked her out for a date. In February 2014, the employee received a long letter from the customer repeating much of the content of the earlier notes. She claimed that she found the letter “disturbing” and brought it to the attention of her manager and other bank colleagues, who warned the employee to be careful.

Around the same time, the customer went to a different bank branch and repeatedly asked employees at that branch how he could get a date with the employee. The customer also sent flowers and a card to her for Valentine’s Day. The employee told her manager that she did not want the customer to be allowed to return to the bank. The manager said that he would not allow the customer to return, but according to the employee, he did not follow through with that decision. Instead, the employee was asked to call the customer to tell him to stop sending her flowers and asking her out on a date. However, the phone call did not stop the harassment, and the bank closed the customer’s account.

In September 2014, the employee spotted the customer at a bank charity event staring at her from a distance. Within a few days of the event, the customer returned to the bank to reopen his account. The bank eventually re-closed the customer’s account and told him not to return to the bank. It also transferred the employee to a different bank branch, although the transfer involved fewer work hours and lower pay. The employee filed this lawsuit against the bank alleging sex discrimination under Title VII and its state counterpart.

HWE theory. Granting summary judgment against the employee, the district court determined that she failed as a matter of law to establish sex discrimination under a hostile work environment theory. The lower court found that no reasonable jury could conclude that the customer’s conduct was so severe and pervasive as to create a hostile work environment. The finding was based on the length of time that elapsed between the February and September incidents and the fact that many of the incidents of alleged harassment did not involve direct, personal contact with the employee. The district court further concluded that no reasonable jury could conclude that the bank acquiesced or ratified the harassment.

Harassment. The Ninth Circuit found that the district court erred in isolating the harassing incidents of September 2014 from those of February 2014. The court noted that the incidents occurred with sufficient regularity that a jury could find that an escalating pattern of harassment caused the employee to feel afraid of her workplace. The appeals court also explained that Title VII does not impose a requirement of direct, personal interactions and that harassing conduct directed to third parties may form part of a hostile work environment. In fact, the court observed that the employee’s colleagues appeared to be afraid for her safety. Thus, a jury could conclude that the customer’s persistence, bizarre, and erratic behavior terrorized the employee and altered the conditions of her employment.

Bank’s acquiescence. An employer ratifies or acquiesces in harassment by not taking corrective measures that are reasonably calculated to end the harassment, the court said. Whether or not the bank took such measures was a genuine issue of material fact. However, the bank did not take actual measures to prevent harassment until many months after the harassment began. It also did not attempt to create a safety plan for the employee. The appeals court rejected the bank’s argument that the employee’s call to the customer excused the bank’s lability. Even if the employee wasn’t pressured into contacting the customer, the court refused to adopt the bank’s reasoning that the employee’s actions could immunized it from liability for a hostile work environment. In any event, the appeals court noted that the call did not stop the harassment and therefore the bank’s “action” was ineffective.

The bank eventually closed the customer’s account and told him not to return the bank. It also transferred the employee to another branch location. However, the Ninth Circuit found the bank’s “glacial” response to be inadequate to prevent liability. It also noted that a jury could find that the bank’s handling of the matter placed the bulk of the burden on the employee, and it found particularly troubling the bank’s suggestion that the employee “hide in the break room” when the customer was in the bank. Moreover, a jury could determine that relocation unreasonably burdened the employee, the appeals court said. It rejected the bank’s argument that the move absolved it of liability. The bank failed to act promptly and effectively, and the employee’s willingness to accept a transfer at lower pay was evidence of just how ineffective the bank’s response was, the court concluded.

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