Same-Sex Harassment: Do Either Price Waterhouse or Oncale Support the Ninth Circuit's Holding in Nichols v. Azteca Restaurant Enterprises, Inc. That Same-Sex Harassment Based on Failure to Conform to Gender Stereotyopes is Actionable?

Authors

Philip McGough

Abstract

In Nichols v. Azteca Restaurant Enterprises, the Ninth Circuit, overruling a twenty-two year old case, held that same-sex harassment based on gender stereotypes is actionable under Title VII. The court based this holding on the Supreme Court's 1989 opinion in Price Waterhouse v. Hopkins. However reasonable a reading of Title VII, the author argues that Nichols takes a major step beyond Hopkins, and resolves an issue not considered, even by implication, in the case. Further, same-sex harassment based on gender stereotypes is an issue sidestepped by the Supreme Court in Oncale - its only opinion to date dealing with same-sex harassment - leaving the issue for consideration in the circuit courts.

Recommended Citation

McGough, Philip (2004) "Same-Sex Harassment: Do Either Price Waterhouse or Oncale Support the Ninth Circuit's Holding in Nichols v. Azteca Restaurant Enterprises, Inc. That Same-Sex Harassment Based on Failure to Conform to Gender Stereotyopes is Actionable?," Hofstra Labor & Employment Law Journal: Vol. 22: Iss. 1, Article 6.
Available at: https://scholarlycommons.law.hofstra.edu/hlelj/vol22/iss1/6