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American Legion Post 12 v. Susa11/30/2005
s. Furthermore, a reasonable person would find ethnic slurs, sexual comments, exposure, and physical contact (licking of the arm and grabbing) to be objectionable in the ordinary workplace.
The sixth prong of the hostile work environment test focuses on the Commission's decision to hold the employer liable for the harassing conduct of its patrons and, in this case, members of the employer's organization. Despite the Legion's contention that such a finding has no legal basis, the case law suggests otherwise. "An employer may be held liable for the actionable third-party harassment of its employees where it ratifies or condones the conduct by failing to investigate and remedy it after learning of it." Galdamez, 415 F.3d at 1022 (citations omitted). A number of courts have reached similar conclusions. See Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754, 756 (9th Cir. 1997); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1074 (10th Cir. 1998) (employers may be held liable for customer harassment "if they 'fail to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known'") (quoting Hirschfeld v. New Mexico Corrections Dep't, 916 F.2d 572, 577 (10th Cir. 1990)); see also Little v. Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir. 2001); Van Horn v. Specialized Adult Services, 241 F. Supp. 2d 994, 1012 (S.D. Iowa 2003).
In the case at hand, the record indicates that complainants Cote and Pacheco repeatedly made the Legion aware of the patrons' harassing conduct. Despite its knowledge, the only action taken by the Legion to prevent the derogatory remarks and actions, with respect to the women's Italian heritage, was to tell the patrons to "knock it off." Although it was clearly communicated to the women's supervisors-through their repeated complaints-that the conduct had not ceased, the Legion took no further disciplinary measures.
Similarly, the Legion did not take sufficient corrective action to prevent future instances of sexual misconduct when it was alerted to the individual instances of sexual harassment. The Legion did suspend one individual-who was not a Legionaire-but the punishment was severely undermined when he would repeatedly "sneak in" to the building, with the help of a member of the Board, with no further repercussions. It was not until he committed a second offense, by exposing his genitals, that he was permanently banned.
Considering that many, if not all, of the patrons engaged in the harassment were Legion members, there is an even greater nexus between the employer and the actionable "third-party harassment" in this case. Mr. Kettelle admitted that "it's almost an act of God" to suspend or expel a Legionaire and the Legion's inaction was consistent with that philosophy. Although small attempts to curb the problems were made, the Legion never made it clear to the patrons that it would simply not tolerate the harassing behavior. Accordingly, the Commission had substantial evidence before it to find that the Legion failed to remedy or prevent the hostile work environment although it was aware of its existence.
B. Disparate Treatment Discrimination
The Legion argues that the Commission's finding, that Ms. Cote and Ms. Pacheco were victims of unlawful discrimination with respect to their ancestral origin, was clearly erroneous in view of the reliable, probative, and substantial evidence on the record. After reviewing the record, this Court finds that the Commission's decision was not clearly erroneous.
Discrimination allegations relating to the termination of employment are reviewed under the disparate trea
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