Reference no: EM132227138

Aaron was a male sales associate at Hollister, hired in December 2017. Since approximately March of 2018, Aaron regularly assisted Cedric, a male customer who sought out Aaron each time he was in the store. Whenever Cedric was near Aaron, he always managed to place his hands on him in ways that made Aaron feel very uncomfortable, and Cedric also regularly made highly suggestive comments to Aaron about his physique. Cedric never made similar comments to any of the female sales associates. Aaron never told Cedric how he felt about what he considered to be Cedric’s inappropriate touching and comments. Nevertheless, Aaron began to feel increasingly anxious when he was at work, and especially when Cedric was in the store. Aaron even missed work occasionally due to his increasing anxiety. In July 2018, Aaron confided in the new store manager, Sophie, about what had been happening and how much he disliked Cedric’s behavior. Aaron also told her he had missed work to avoid being around Cedric. As it turned out, Cedric is one of Sophie’s best friends. Sophie acted amused by the situation and simply assured Aaron that Cedric was only joking with him. She encouraged Aaron to not take Cedric so seriously. Aaron didn’t ask Sophie to speak with Cedric and Sophie didn’t offer to say anything to him in an effort to improve the situation. Sophie also didn’t mention her conversation with Aaron to anyone else within the company. Cedric’s inappropriate touching and suggestive comments to Aaron only continued. Aaron eventually decided he could no longer withstand the stress and submitted his resignation in September 2017. In October 2017, Aaron filed a timely charge of discrimination with the EEOC, alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended. Hollister has had a written sexual harassment policy since 2004. Although the policy prohibits the creation of a hostile work environment (and includes a description of what constitutes a hostile work environment), it makes no specific reference to situations involving harassment by members of the same sex or by customers. The policy provides for alternative means for employees to submit complaints to others in management in addition to their store manager and requires any manager or supervisor who witnesses or is made aware of potential harassment to immediately report it to area human resources. The policy is reviewed during new employee orientation and during periodic management/supervisor training. Both Aaron and Sophie have signed an acknowledgement that they received a copy of the policy and Sophie has attended the training.

Would Aaron be able to establish a PRIMA FACIE CASE of sexual harassment against Hollister based upon Cedric’s actions? EXPLAIN.  

If the offensive touching and comments had instead been directed by Sophie towards Aaron (sufficient to establish vicarious liability), and if Aaron had felt too afraid to complain to Sophie, or anyone else in the company, would Hollister be able to avoid liability by establishing an AFFIRMATIVE DEFENSE to Aaron’s claim? EXPLAIN.