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A male employee who endured an unrelenting barrage of verbal abuse — including being called sexually derogatory names, referred to as a female, and taunted for behaving like a woman — established the existence of a hostile work environment, held the 9th U.S. Circuit Court of Appeals. The employee was a restaurant server who was taunted by coworkers and a supervisor for carrying his serving tray “like a woman” and called a “faggot” and a “f***ing female whore.” The employee complained repeatedly, and the human resources director ultimately told him to report any further harassment to the general manager. The employee made no further complaints. A few months later, he was fired for unrelated reasons. He sued under Title VII and the Washington Law Against Discrimination. A district court entered judgment in favor of the employer, and the employee appealed. ( Nichols v Azteca Restaurant Enterprises, Inc., 9th Cir, 81 EPD 40,716) On appeal, the 9th Circuit held that the work environment was both subjectively and objectively hostile. Furthermore, the harassment was based on sex because it was prompted by a belief that the employee did not conform to a male stereotype. The employer failed to investigate the employee’s complaints, discuss the allegations with the perpetrators, demand that the conduct cease, or threaten more serious discipline; almost all of the remedial burden was placed on the victimized employee to report further harassment. For this reason, the court held the employer liable for the coworker harassment. As for the supervisor harassment, the employee had suffered no “tangible employment action.” However, while the harassment policy and company-wide training program were sufficient to show reasonable care to prevent harassment, the employer failed to exercise reasonable care to promptly correct the supervisor’s harassment of the employee. The employer was therefore unable to assert an affirmative defense and was held liable. The 9th Circuit agreed with the district court, however, that the employee had not been fired in retaliation for opposing the harassment. Accordingly, the judgment of the district court was affirmed in part, reversed in part, and remanded. � 2001, CCH INCORPORATED. All Rights Reserved.

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