Employer may terminate woman who punches harasser

Kelbi Folkerson is a professional mime who performed in the guise of a life-size children's wind-up toy named "Kelbi the Living Doll" at the Circus Circus Casino in Las Vegas. Because she was so convincing, casino patrons would often wonder whether or not she was a real person, and would try to touch her to find out if she was human. The Casino took numerous precautions to prevent any touching from happening.

Despite the security measures, a male customer did touch her on the shoulders, and in response, she punched him in the mouth. Circus Circus then terminated her employment. She sued, claiming the touching was sexual harassment, and that she was fired in retaliation for opposing sexual harassment.

The court held that the employer was liable only for customer sexual harassment that the employer "ratifies." Here, the employer had taken many precautions to protect her from sexual harassment. The employer did not have an opportunity to deal with the harassment in this case, because the woman punched him. The employer had a right, indeed a duty, to protect customers from unwarranted attacks. Therefore, the termination of the employee was upheld.

[Note that if she had used her fists to prevent the customer from touching her, it could have been warranted as self-defense.]

Case Excerpts

Kelbi Folkerson is a professional mime who performed in the guise of a life-size children's wind-up toy named "Kelbi the Living Doll." Folkerson was employed in that capacity by Circus Circus. Because Folkerson was so convincing in her character, casino patrons would often wonder whether or not she was a real person. Folkerson was concerned because some patrons would try to touch her to find out if she was human. When Folkerson discussed these concerns with her supervisor, she was told that she should call security whenever she experienced problems and was provided with a sign reading "Stop, Do Not Touch" which she wore on her back. Further, Circus Circus allowed another performer, a large man dressed in a clown costume, accompany Folkerson when she was performing.

Despite these precautions, Folkerson was touched by a casino patron on November 20, 1991. According to Folkerson, a casino patron approached her and said to onlookers, "I will show you how real she really is." A woman working at a nearby car rental counter warned the patron three times not to touch the performer. Nonetheless, the patron moved toward Folkerson with open, extended arms, as though he planned to hug her. He touched her in the shoulder area, whereupon Folkerson reached up and hit the patron in the mouth. After Folkerson's supervisor reviewed a videotape of the incident, he terminated Folkerson's employment based upon his conclusion that Folkerson did not have adequate provocation to hit the patron. Folkerson alleged that she was terminated in retaliation for her opposition to and rejection of the casino patron's "sexual harassment"

Folkerson v. Circus Circus
___ F4th ___, 97 C.D.O.S. 1231 (9th Cir., February 21, 1997)

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