## Facts

- Antonio Sanchez worked for Azteca Restaurant Enterprises, Inc. from 1991 to 1995, first as a host and later as a server.
- Male co-workers and at least one supervisor repeatedly subjected Sanchez to gendered insults and vulgar epithets, including calling him “she” and “her,” mocking him for acting “like a woman,” and using slurs such as “faggot” and “fucking female whore.”
- The harassment occurred frequently over years—at least weekly and often several times per day—and was made in front of others, including customers.
- Azteca maintained a written anti-harassment and anti-retaliation policy directing employees to complain to the corporate office.
- Sanchez complained internally, including to the general manager and later to the human-resources director, stating he feared the harassment would continue to be ignored.
- After a heated workplace argument, Sanchez walked off the job mid-shift and was terminated; Azteca asserted the termination was for leaving his shift rather than for complaining.
- Sanchez sued alleging, among other claims, hostile work environment sexual harassment and retaliation under Title VII and the Washington Law Against Discrimination (WLAD).

## Issues

1. Whether repeated same-sex harassment directed at a male employee for perceived effeminacy and failure to conform to masculine stereotypes constitutes discrimination “because of sex” sufficient to prove a hostile work environment under Title VII and WLAD.
2. Whether Azteca was liable for the harassment based on its knowledge of the conduct and its response to complaints.
3. Whether Sanchez’s termination was unlawful retaliation for opposing harassment.

## Decision

- The Ninth Circuit reversed the judgment for Azteca on the hostile work environment claims under Title VII and WLAD.
- The court held the harassment was “because of sex” where it was motivated by sex stereotyping and was severe or pervasive enough to create an abusive work environment.
- The court held Azteca was liable because it failed to take adequate remedial steps despite complaints and ongoing misconduct.
- The Ninth Circuit affirmed the judgment for Azteca on the retaliation claim, concluding the record did not compel overturning the finding that Sanchez was terminated for walking off the job.
- The case was remanded for further proceedings on the hostile work environment claims.

## Legal Principles

- Title VII’s ban on discrimination “because of sex” reaches harassment motivated by a worker’s failure to conform to gender stereotypes.
- Same-sex harassment is actionable when the evidence shows the conduct was sex-based, including through gendered epithets and stereotyping.
- A hostile work environment requires unwelcome conduct “because of sex” that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment (objectively and subjectively).
- An employer’s written anti-harassment policy does not, by itself, avoid liability; once the employer knows or should know of harassment, it must take effective corrective action.
- Retaliation requires protected activity, an adverse action, and causation; a termination supported by a non-retaliatory reason may defeat the claim absent proof of retaliatory causation.

## Conclusion

The Ninth Circuit held that persistent same-sex harassment aimed at a male employee for not meeting masculine stereotypes can constitute sex-based hostile work environment discrimination under Title VII and WLAD, and it found employer liability where corrective measures were inadequate; it nonetheless upheld the rejection of the retaliation claim based on the trial court’s finding of a non-retaliatory reason for discharge.


Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001)