The Ninth Circuit waited until the sixth day of 2021 to issue its first published opinion of the year, and it still has yet to release the sort of business-related civil decision that we here at Left Coast Appeals would ordinarily highlight. But the Court ended 2020 with a bang, issuing a decision that carefully examines the scope of hostile workplace liability and an employer’s obligation to prevent harassment of its employees.
CHRISTIAN v. UMPQUA BANK
The Court holds that a bank could be liable for gender discrimination for failing to take effective steps to stop persistent harassment by a bank customer.
The panel: Judges Paez, Rawlinson, and Kobayashi (D. Haw.), with Judge Paez writing the opinion.
Key highlight: “Christian learned from her colleagues that the customer was persistently contacting them to obtain information about her. That she did not witness the customer’s condcouct firsthand is no matter: She heard his message loud and clear. Where, as here, a plaintiff becomes aware of harassing conduct directed at other persons, outside her presence, that conduct may form part of a hostile environment claim and must be considered.”
Background: Plaintiff Jennifer Christian worked at a branch of Umpqua Bank. A customer became infatuated with her, repeatedly sending her unwanted letters and flowers and visiting her—conduct both Christian and her coworkers found disturbing. Although her manager at one point said he would keep the customer from returning, he apparently never took action on that request. When the customer later returned to open a new account, Christian’s manager directed Christian to help the customer, and he later advised her to hide in the break room if the customer returned. Christian requested a transfer to a different branch of the bank, at a lower paying position. That transfer was granted, but soon thereafter she resigned.
Christian then filed suit against Umpqua, alleging Washington and federal claims for gender discrimination. The district court granted summary judgment to Umpqua, holding that there was no triable issue as to whether (1) Christian had been subjected to a hostile work environment, and (2) Umpqua had ratified or acquiesced in the customer’s harassment.
Result: The Ninth Circuit reversed. First, the Court concluded there were triable issues as to whether the harassment Christian experienced was sufficiently pervasive to create a hostile work environment. As the Court explained, the fact that there were sometimes long gaps between Christian’s interaction with this customer did not, as the district court believed, defeat her claim, as a juror could conclude that Christian “understandably experienced the harassment not as isolated and sporadic incidents but rather as an escalating pattern of behavior that caused her to feel afraid in her own workplace.” Likewise, the Court held, that some incidents—such as the customer’s sending Christian letters—did not involve direct, personal, interactions did not prevent those incidents from constituting harassment. The same went for interaction where the customer conveyed messages to Christian through her coworkers: regardless of whether Christian witnessed this conduct, she heard about it, and its message was clear. Emphasizing 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,” the Court held that the evidence was “more than sufficient to create a triable issue as to whether the harassment was sufficiently severe or pervasive to alter the conditions of Christian’s employment.”
Second, the Ninth Circuit also held that Christian’s evidence would suffice to show that Umpqua ratified or acquiesced in this harassing conduct, as a jury could conclude that the bank did not take effective corrective measures. As the Court explained, an employer may be held liable for a third party’s harassment where the employer does not take effective corrective measures reasonably “calculated to end the harassment.” Here, although Umpqua had apparently decided early on that the customer should not return to the bank, it “did not take steps to implement that decision, such as actually informing the customer not to return to the bank or closing his account.” That Christian had at one point said she would call the customer and tell him to stop his conduct did not, the Court held, absolve the bank of liability, both because it appeared that bank may have pressured her to take this step, and because the Court more generally “refuse[d] to accept the notion that a victim’s own actions immunize her employer from liability for ongoing harassment.” While the bank did eventually take steps to end the harassment, the Court held that its “glacial response" more than "half a year after the stalking began” could be seen as “too little too late." The Court also emphasized evidence that the bank put much of the obligation of responding on Christian herself, and that its transfer of Christian both burdened her and could be seen as evidence of how ineffective bank had been at stopping the harassment. All told, there was “more than enough evidence to create a genuine issue of material fact as to the sufficiency of Umpqua’s response.”