Must A Customer’s Stalking Involve Physical Touching To Create A Hostile Work Environment?
For more than two decades, our Citrus County, Florida sexual harassment lawyers have fought for the rights of Florida employees who have been required to work in a sexually hostile work environment. Having represented sexual harassment victims for more than twenty years, our Inverness, Florida sexual harassment attorneys know that employers defend sexual harassment cases by arguing that the victim did not work in hostile work environment because the harassment did not involve physical or sexual touching. Without physical or sexual touching, employers maintain, the sexually harassing behavior was not sufficiently severe or pervasive to alter the conditions and create an abusive working environment.
However, as the U.S. Seventh Circuit Court of Appeals observed in Equal Employment Opportunity Commission v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018), actionable sexual harassment “need not consist” of physical or sexual touching. To establish a sexual harassment claim, a victim must show that she was subjected to sex-based harassment that was sufficiently severe or pervasive to alter the conditions of employment and create a hostile work environment. Thus, sexually harassing behavior need not be both severe and pervasive to create an actionable hostile work environment. Rather, one or the other will do. Consequently, although courts consider physical or sexual touching to be “severe” sexual harassment, severity is not required if the sexually harassing behavior is pervasive.
In this article, our Citrus County, Florida sexual harassment lawyers explain how the recent decision by the U.S. Ninth Circuit Court of Appeals in Christian v. Umpqua Bank, Case No. 18-35522 (9th Cir. Dec. 31, 2020) demonstrates that verbal conduct of a sexual nature that is sufficiently pervasive to alter the conditions of the victim’s work environment can, standing alone create an actionable hostile work environment.
Employee Stalked By Customer
In that case, Jennifer Christian (Christian) brought a sexual harassment case against her former employer, Umpqua Bank (Umpqua), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). Title VII makes sexual harassment an unlawful discriminatory employment practice. Christian alleges that Umpqua violated Title VII by failing to take effective action to stop a bank customer from stalking and sexually harassing her in the workplace.
In 2009, Christian began working as a universal associate for Umpqua at its branch in Vancouver, Washington. In late 2013, a customer (the customer) asked Christian to open a checking account for him. Shortly thereafter, the customer began visiting the bank and dropping off “small notes” for Christian. The notes stated that Christian was “the most beautiful girl he’d seen” and that the customer “would like to go on a date” with her. When Christian next saw the customer, she told him, “I’m not going to go on a date with you.” He responded, “okay,” and left the bank.
The customer’s behavior, however, continued. In early February 2014, the customer sent Christian a long letter stating that she was “the most beautiful woman he’s ever seen, that she was his dream girl, that they were meant to be together, and that he wanted to be with her.” Christian showed the letter to her manager, Sanseri, and a corporate trainer, Effinger. Around the same time, Christian learned from employees at another Umpqua branch that the customer had been in the branch several times and asked employees how he could get a date with Christian.
Customer’s Stalking Continues Despite Complaints
On Valentine’s Day of 2014, the customer sent Christian flowers and a card. Christian told Sanseri that she did not want the customer allowed back in the bank. According to Christian, Sanseri promised her that he would not allow the customer to return but never in fact communicated that decision to the customer. Instead, Christian maintains, Sanseri asked her to call the customer to tell him that it was inappropriate to send flowers. Christian felt uncomfortable calling the customer, but agreed to do so. She telephoned the customer and informed him that it was inappropriate to send flowers and that she was not going to go on a date with him. The customer, however, did not stop. Several days later, the customer hand delivered another letter to Christian. This letter stated that he and Christian were “meant to be together” and were “soulmates.” Christian showed the letter to Sanseri and several other co-workers.
Christian did not have any direct contact with the customer again until September 2014. In September 2014, Christian and Sanseri volunteered on behalf of the bank at a charity event for homeless community members. While Christian was scooping ice cream in an ice cream truck, she noticed the customer “sitting on the wall of the building” staring at the truck for twenty to thirty minutes. Within a few days of the charity event, the customer returned to Christian’s branch to reopen his account. Rather than ask the customer to leave, Sanseri instructed Christian to open a new account for him. A few days later, the customer returned and sat in the bank lobby for one hour staring at Christian.
Afterward, Christian informed a regional manager of the situation. The regional manager told her, “Don’t worry. This is an easy fix. We can close his account in 20 minutes . . . We can get this fixed today so he’s not allowed to come in the bank anymore.” For the next few days, Christian called out sick due to stress and anxiety, and refused to return to work until a no-trespassing order was implemented to bar the customer from visiting the bank. Sanseri instructed Christian to return to work and directed her to “just hide in the break room” if the customer visited the bank.
Shortly thereafter, Christian requested in writing that the bank close the customer’s account and obtain a no-trespassing order against him. Christian also asked to be transferred to a different branch. Umpqua closed the customer’s account and told him not to return to the bank. Umpqua also transferred Christian to another branch. Soon after, Christian resigned her position, stating in an email that she was leaving because “her doctor has decided it is bad for her health to continue working at Umpqua Bank.”
Harasser Does Not Have To Touch Victim
The trial court dismissed Christian’s sexual harassment claim. In doing so, the trial court repeatedly emphasized that the customer’s sexually harassing behavior did not create a hostile work environment because the customer “did not attempt to touch [Christian].” In revering the trial court’s dismissal and reinstating Christian’s sexual harassment claim, the Ninth Circuit explained that sexual harassment “need not involve physical or sexual touching in order to be actionable under Title VII.” Taking all of the customer’s acts of harassment together, the Ninth Circuit determined that a reasonable jury could find that the harassment Christian endured was sufficiently severe or pervasive to alter the conditions of her employment and create a hostile work environment.
In support of its conclusion, the Ninth Circuit reasoned that the customer—a person Christian barely knew—“repeatedly pestered her, asked her on dates, and sent her notes and letters declaring that they were soulmates and were meant to be together.” The appellate court also observed that Christian was “terrorized not only by the customer’s bizarre and erratic behavior in and of itself, but also by its unknown potential to escalate.” Christian’s co-workers, the court of appeals pointed out, “also feared for her safety and repeatedly warned her to be careful.” This evidence, the Ninth Circuit determined, “is more than sufficient” for a jury to find that the harassment created an abusive working environment.
Inverness, FL Sexual Harassment Lawyers
Based in Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida sexual harassment attorneys have litigated sexual harassment cases in Florida courts for more than twenty years. If you have been stalked by a customer in the workplace or have questions about your protection against workplace sexual harassment under the federal employment laws, please contact our office for a free consultation with our Inverness, Florida sexual harassment lawyers. Our employment and labor law attorneys take sexual harassment cases cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.