On Monday, July 16, 2001, a panel of the Ninth Circuit Court, 2-1, ruled that discrimination and harassment of a male because he did not meet the harassers’ view of a male stereotype constitutes discrimination and harassment “because of sex”.  The harassment involved an allegedly “relentless campaign” of references to the male plaintiff in female terms, mocking him for walking and carrying his tray “like a woman,” and taunts with vulgar sexual references that included references to his perceived sexual orientation.  The court took the bold step of reversing a trial court’s factual findings on hostile work environment (after a non-jury trial).

The Circuit Court’s decision also dealt with two aspects of the employer liability rules, under both the Faragher and Ellerth affirmative defense pertaining to employer liability for harassment by supervisors and standards for liability for co-worker harassment.  First, the Court confirmed that the affirmative defense does not apply to co-worker harassment, noting again that an employer is liable if it “knew or should have known” of the co-employee harassment but failed to take prompt and appropriate remedial action.  Second, the Court found liability because, in response to a complaint to management, the complainant was told to report-back if there were further problems, and the employer did not investigate, discuss the allegations with the perpetrators, or demand the co-employees stop their harassment.  The Court was also critical of the employer’s position that the plaintiff failed to report harassment because he had not complained to corporate as the employer’s anti-harassment policy required; the plaintiff had complained to local management, which violated the reporting policy.

The Court majority found the employer also liable for the supervisor harassment, to which the affirmative defense applies.  The Court held the employer had satisfied only part of the first prong of the affirmative defense (requiring reasonable efforts to prevent and correct harassment), by distributing an appropriate policy and providing training.  However, the employer’s failure to investigate or admonish the perpetrators was not adequate on the “correction” arm of the first prong, rendering the employer liable as well for the supervisory sexual harassment.

Incorporating as it does the “sexual stereotype” as a prohibited basis of harassment, this decision is a reminder that, in responding to harassment complaints and training employees and managers, employers should broadly interpret their anti-harassment policies to investigate and remedy as much harassment as possible.  This case also serves to reinforce the need to investigate and take documented action to discipline and/or admonish harassers that is appropriate for the offense.

Nichols v. Azteca Restaurant Enterprises, Inc., No. 99-35579 (9th Circ. July 16, 2001).