In an employment discrimination case, the Ninth Circuit Court of Appeals recently held that a jury could reasonably find that the employer ratified or acquiesced in the harassment where it took little to no action against a customer who was repeatedly harassing a bank employee.
Customer Repeatedly Stalks the Bank Employee
Jennifer Christian was an employee of Umpqua Bank who received favorable performance reviews and was twice promoted. In late 2013, a customer asked her to open a checking account for him. The interaction was fine, and she didn’t feel threatened in this interaction with the customer. But soon the man began visiting the bank to drop off “small notes” for the employee. The notes stated that she was “the most beautiful girl he'[d] seen” and that he’d “like to go on a date” with her. She began to feel “concerned,” as did her colleagues. Jennifer’s lead supervisor told her to “watch out, you know, that it doesn’t escalate.”
When Jennifer saw the man at the bank the next time, she told him she wouldn’t go out with him, and he responded, “okay,” and left. But his behavior continued, and in early February 2014, he sent her a letter, which she found “disturbing” because it was “affectionate and personal,” although she barely knew him. She showed the letter to her manager, Chris Sanseri, corporate trainer Shawnee Effinger, and other colleagues. They warned her to be careful.
Around that time, Jennifer learned from employees at the bank’s Esther Short Park branch that the man had “been in [to the branch] several times . . . asking [the employees] over and over . . . how he was going to get a date with [Jennifer].” The employees felt that his conduct was “getting creepy.” They warned Jennifer “that this was potentially extremely dangerous for [her].” The corporate trainer advised her to call the police, and she became increasingly concerned for her safety.
On Valentine’s Day of 2014, the man sent her flowers and a card. She showed her manager the letter and card and told him, “This is disturbing.” The corporate trainer told the manager that it was a dangerous situation for her. Jennifer later recalled that the corporate trainer had to explain to her manager that these letters were alarming and that several people were concerned for her safety.
Employee Asks Manager to Forbid Customer from Returning to the Bank
Jennifer told her manager that she didn’t want the customer to be allowed to return to the bank. According to Jennifer, her manager promised that he wouldn’t let the man return—but never in fact communicated that to the customer. Instead, according to Jennifer’s deposition, the manager asked her to call the customer and tell him it was inappropriate to send her flowers. She felt uncomfortable calling him, but agreed to do so because she felt that her manager “didn’t seem like he wanted to deal with it.” She phoned the customer and told him to stop his behavior. He said “okay.”
But the man didn’t stop. A few days later, he hand-delivered another letter to her at her branch. This letter stated that he and Jennifer were “meant to be together” and were “soulmates.” Jennifer showed the letter to her supervisors and several other colleagues.
Jennifer didn’t have any direct contact with the customer again until September 2014, but he continued to go into the other branch and ask about her and badger her co-workers about how he was going to go out with her. Jennifer’s colleagues told her that the customer continued to ask about her. Ultimately, the Esther Short branch closed the customer’s account because he was “wasting their time[,]” “badgering them constantly[,]” and “didn’t have any money.”
In September 2014, Jennifer and her manager volunteered on behalf of Umpqua at a charity. While there, Jennifer noticed the customer sitting nearby, staring at her for 20 to 30 minutes. She felt threatened and told the other volunteers about the man’s presence. She asked them to watch out for her safety because she was afraid of what he might do.
Within a few days of the charity event, the man returned to her branch to reopen his account. Instead of asking the customer to leave, her manager told Jennifer to open a new account for him. She felt uncomfortable doing this and reminded her manager that he’d promised her that the customer wouldn’t be allowed to return to the bank.
He responded, “I don’t really remember any of that, Jennifer, and I’ll just get [another associate] to do it,” causing her to feel “upset and scared.” While the customer was assisted by another associate, he stared at Jennifer.
The next day, Jennifer returned to work “filled with fear and overwhelming anxiety that [the customer] would come back” to the bank. A few days later, the man returned. Although he had no apparent banking business to do, he sat in the bank lobby for at least 45 minutes, staring at Jennifer. She was “filled with fear and sick to [her] stomach” and “froze up while helping [another] customer.” Jennifer asked that customer to stay with her until he left.
Her Bank Manager Suggests She Just “Hide in the Break Room”
Jennifer subsequently told a regional manager about the situation. He told her, “Don’t worry. This is an easy fix. We can close his account in 20 minutes . . . . [W]e can get this fixed today so he’s not allowed to come in the bank anymore.”
Jennifer also phoned and left messages with another manager and a Human Resources representative seeking assistance.
The next few days, she called out sick due to stress and anxiety and refused to return to work at her branch until a no-trespassing order was implemented to keep the man from visiting the bank. Nonetheless, her manager told her to return to work and instructed her to “just hide in the break room” if the customer came back. Later that same week, Jennifer met with her regional manager, the HR representative, and her direct manager, who again suggested that she “hide in the break room during the times when [the customer] would come into the Bank.” They also offer to move her to a different bank branch location.
Soon after, Jennifer requested in writing that the bank close the man’s account and obtain a no-trespassing order against him. She also asked to be transferred to another bank location, even though there was only a 25-hour per week position—less hours than she then had. She said she was willing to take it because she needed to work in a safe environment and because she felt the bank gave her no other options. She told them, “I can only feel that I am being punished for the mistake of others at Umpqua.”
Umpqua Bank ultimately closed the man’s account and told him not to return. The bank also temporarily transferred Jennifer to a different branch prior to moving her to the Salmon Creek branch several weeks later. Shortly thereafter, she resigned, stating in an email that she was leaving because her “doctor has declared it is bad for [her] health to continue working at Umpqua Bank.”
After obtaining a Notice of Right to Sue from the Equal Employment Opportunity Commission (“EEOC”), she filed suit, alleging gender discrimination and retaliation in violation of state and federal law. The district court granted the bank’s request to dismiss the case. Jennifer appealed.
The Ninth Circuit’s Analysis
Circuit Judge Richard A. Paez opined that Title VII and state law prohibit sex discrimination in employment. To establish sex discrimination under a hostile work environment theory, Judge Paez said that a plaintiff must show she was subjected to sex-based harassment that was sufficiently severe or pervasive to change the conditions of employment, and that her employer is liable for this hostile work environment. Here, the question was whether the harassment Jennifer suffered was severe or pervasive and whether the bank was liable for it.
To determine whether the conduct was sufficiently severe or pervasive, a court must consider all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Judge Paez explained that the required level of severity or seriousness “varies inversely with the pervasiveness or frequency of the conduct,” citing a 2001 Ninth Circuit decision.
The district court held that Jennifer’s harassment claims failed because no reasonable juror could find that the man’s conduct was severe or pervasive enough to create a hostile work environment. The court also declined to consider much of the evidence of misconduct because seven months had elapsed between the harassment, and because many of the incidents didn’t involve direct, personal interactions between Jennifer and the customer. As a result, the trial court accepted only one incident as actionable harassment—the customer’s visit to the bank in September 2014 to reopen his account—and concluded that, without more, that one incident wasn’t enough to constitute a hostile workplace.
The Trial Court Errs on Three Points, the Ninth Circuit Says
First, the Ninth Circuit held that the court erred in isolating the harassing incidents of September 2014 from those of February 2014. They should be evaluated together, the Court said. The harassment Jennifer endured in February involved the same type of conduct, occurred relatively frequently and was perpetrated by the same person as the harassment in September. Jennifer understandably experienced the harassment not as isolated and sporadic incidents but rather as an escalating pattern of behavior that made her feel afraid in her own workplace. Judge Paez held that the Court couldn’t say that a juror wouldn’t find that fear reasonable or the resulting environment hostile. The district court’s overly narrow approach, the Ninth Circuit said, which ignored the reality that a hostile work environment is ambient and persistent, and that it continues to exist between overt manifestations, was in error.
Second, the district court erred in declining to consider incidents in which Jennifer didn’t have any direct, personal interactions with the customer, like his letter describing her as his “soulmate,” the flowers, and his watching her in the bank lobby. Title VII imposes no such requirement, the Court of Appeals held. Because the district court repeatedly emphasized that the customer didn’t attempt to touch Jennifer physically, the Court of Appeals emphasized that gender-based harassment, like any other form of harassment, doesn’t have to involve physical or sexual touching in order to be actionable under Title VII.
Finally, the district court erred in neglecting to consider record evidence of interactions between the customer and third persons, like the customer’s repeated visits to the other branch to speak with her colleagues about how he was going to go out with her. Offensive comments don’t all need to be made directly to an employee for a work environment to be considered hostile, the Court said. Jennifer learned from her colleagues that the man was persistently contacting them to obtain info about her. The fact that she didn’t witness his conduct firsthand doesn’t matter: she heard his message. 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.
Viewing all the evidence in the light most favorable to Jennifer, the Court of Appeals concluded that genuine disputes existed as to the severity or pervasiveness of the harassment such that a jury could find in Jennifer’s favor. Because the Court of Appeals concluded that a trier of fact could find that the harassment altered the conditions of Jennifer’s employment and created an abusive working environment, the Ninth Circuit turned to the question of the bank’s liability.
The Employer’s Liability
“[A]n employer may be held liable for sexual harassment on the part of a private individual, such as [a customer], where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct, the Court wrote, citing a 1997 Ninth Circuit case. The employer’s corrective measures must be “reasonably calculated to end the harassment.” That reasonableness will depend on, inter alia, the employer’s ability to stop the harassment and the promptness of the response.” Judge Paez explained that the effectiveness is measured not only by ending the current harassment but also by deterring future harassment—by the same offender or others. Liability will attach if (i) no remedy is undertaken; or (ii) the remedy attempted is ineffectual.
Here, the district court held that no reasonable juror could conclude that the bank ratified or acquiesced in the harassment, reasoning that “[w]hen advised of the incidents involving the customer, Defendant immediately responded to Plaintiff’s concerns,” both initially in February 2014 and again in September 2014. However, the Court of Appeals disagreed and held that a jury reasonably could find that the bank ratified or acquiesced in the harassment.
First, whether her employer took prompt, appropriate, and effective action in February presents a genuine issue of material fact. Although the district court credited the bank with deciding in February that the customer wouldn’t be permitted to return and said was inappropriate to send flowers, the bank failed to take steps to implement that decision, such as actually informing the customer not to return or closing his account. Nor did Umpqua take any other action to end the harassment, such as creating a safety plan for Jennifer, securing a no-trespassing order, or discussing the situation with bank security or HR. Inaction is not a remedy “reasonably calculated to end the harassment,” and the Court said that it refuses to make liability for ratification of past harassment turn on the fortuity of whether the harasser…voluntarily elects to cease his activities…”
Umpqua responded that Jennifer volunteered to call the customer and that her action was sufficient to excuse the bank of its liability. Judge Paez said whether Jennifer genuinely “volunteered” to call the customer or, as Jennifer testified, was pressured to talk to the customer because her manager was checked out is disputed. Even if the Court of Appeals were to credit Umpqua’s version of events, the Court refused to accept the idea that a victim’s own actions immunize her employer from liability for ongoing harassment.
More importantly, Judge Paez said that the bank’s “action” easily could be deemed ineffective, since the customer didn’t stop his activities. Just a few days after the call, the customer hand-delivered a second letter to Jennifer’s branch. Again, Umpqua took no action. The harassment continued over the course of the following seven months as the man harassed her co-workers about how to get a date with her, stalked her at the charity event, and ultimately reappeared at the bank in September.
Whether Umpqua’s actions in September were sufficient is also a question for the jury, Judge Paez said. Although Umpqua eventually did close the customer’s account, direct him not to return, and transferred Jennifer to a new branch location, a trier of fact reasonably could find that that bank’s “glacial response—more than half a year after the stalking began—was too little too late.”
Moreover, Judge Paez said a jury could find Umpqua’s response unreasonable because it placed the bulk of the burden on Jennifer herself. For instance, Umpqua managers repeatedly suggested that Jennifer “hide in the break room during the times when [the customer] would come into the Bank.”
“A jury could find the suggestion that a female employee should be made to hide in her own workplace unreasonable, callous, and demeaning,” the Court stated.
Further, the transfers to other branches also unreasonably burdened Jennifer. A victim of sexual harassment shouldn’t have to work in a less desirable location as a result of an employer’s remedy for sexual harassment. Moreover, the transfers could be construed as evidence of just how ineffective Umpqua’s response was.
“A forced transfer is no remedy,” the Court of Appeals said.
Thus, there was ample evidence to create a real issue as to the sufficiency of the bank’s response. Because a jury reasonably could conclude that Umpqua ratified or acquiesced in the customer’s harassment, the Court of Appeals held that the district court erred in granting summary judgment in favor of the bank. The case was reversed and remanded. Christian v. Umpqua Bank, 2020 U.S. App. LEXIS 40829 (9th Cir. December 31, 2020).
This case provides a few lessons for California small businesses and employees:
- Gender-based harassment threatens the ability of its victims to thrive in the workplace, and employers must act promptly to remedy its effects and prevent its recurrence.
- There’s a real issue whether an employer ratified or acquiesced in the harassment where it doesn’t tell a customer not to return and take other remedial actions.
- Incidents of harassment can be severe or pervasive enough to create a hostile environment despite the fact that’s a months’-long gap between them, and incidents don’t involve direct interaction with the customer.
- Gender-based harassment, like any other form of harassment, doesn’t require physical or sexual touching in order to be actionable under federal law.
Eanet, PC is a boutique law firm located in Los Angeles, California specializing in business litigation, real estate litigation, labor and employment litigation, and employment advice and counsel. We represent clients in California with issues of sexual harassment, wrongful termination, and retaliation discrimination under California and federal law. Contact us to discuss your employment questions at or (310) 997-4185.