Metropolitan News-Enterprise


Tuesday, July 17, 2001


Page 1


Ninth Circuit Reinstates Complaint Against Employer For Not Stopping Harassment by Co-Workers


By a MetNews Staff Writer


A waiter’s suit against a restaurant chain, claiming the employer did nothing to stop co-workers from harassing him because of his supposed effeminate qualities, was reinstated yesterday by the Ninth U.S. Circuit Court of Appeals.

Antonio Sanchez was harassed “because of sex,” Judge Ronald L. Gould concluded for the Ninth Circuit, contrary to the findings of a district judge. The appellate panel reinstated Sanchez’s suit against Azteca Restaurant Enterprises, Inc.

Sanchez presented evidence that he had complained to the manager and assistant manager of the Seattle-area restaurant where he worked, part of a chain of eateries in Washington and Oregon, about the acts of his co-workers. He said he was insulted in Spanish and English, called a “faggot” and a “whore,” and told he carried his tray “like a woman” and referred to as “she” and “her.”

Sanchez, who worked for Azteca from 1991 to 1995, filed a complaint with the Equal Employment Opportunity Commission a month after his employment ended. Azteca denied that Sanchez was subjected to a hostile work environment and said he was fired for leaving work in the middle of a shift following an argument with an assistant manager.

The case was tried without a jury before U.S. District Judge Jack Shanstrom of Montana, sitting by designation in the Western District of Washington. Shanstrom found that Sanchez’s work environment wasn’t objectively hostile, that it wasn’t perceived by the plaintiff to be hostile, and that any harassment Sanchez suffered wasn’t related to sex.

Those findings were erroneous and not backed by substantial evidence, Gould said. The restaurant, he said, failed to rebut Sanchez’s testimony that he was subjected to “an unrelenting barrage of verbal abuse” and that he made detailed complaints to the company’s personnel manager.

The appellate jurist went on to conclude that the harassment of Sanchez based on perceived femininity was “closely linked to gender” and thus actionable under Title VII of the Civil Rights Act of 1964. He noted that Sanchez was attacked “for having feminine mannerisms” and that his co-workers “constantly reminded Sanchez that he did not conform to their gender-based stereotypes.”

Judge Stephen Reinhardt concurred in Gould’s opinion, while Judge Kim M. Wardlaw dissented in part.

Wardlaw agreed with the majority that Sanchez had proven harassment by his co-workers and that Azteca had violated Title VII by not remedying the harassment. But she argued that the company could not be held vicariously liable for further acts of harassment attributed to its managers because the company had an adequate policy on sexual harassment and did not take “tangible employment action” against Sanchez.

The case is Nichols v. Azteca Restaurant Enterprises, Inc., 99-35579.


Copyright 2001, Metropolitan News Company