The United States Court of Appeals for the Fifth Circuit has issued an interesting opinion in the case of Royal v. CCC&R Tres Arboles on what constitutes sexual harassment and retaliation. Denise Royal alleged that she was the subject of repeated sniffing by co-workers and was later fired for complaints of being continually sniffed. The Fifth Circuit ruled that sniffing can constitute sexual harassment.
The alleged behavior of the male employees in the case is truly bizarre and animalistic. Royal was a leasing manager in a small company. The court laid out the facts:
According to Royal, two maintenance workers would enter her office and would hover over her as she sat at her desk and sniff her. This harassment occurred about twelve times, for each worker, over the four days of Royal’s brief employment. Sometimes each would come alone, and sometimes they would come together. Royal told them several times that she did not like their behavior. Apparently they were undeterred. The workers would sometimes sniff and hover directly over Royal’s head when she was seated. Sometimes the men would sniff even when Royal exited the bathroom. There were also other incidents of objectionable conduct, one of which involved one of the maintenance workers sitting on a cabinet behind Royal with his legs open. He was an arm’s length away and wearing shorts. She alleged that he was visibly aroused. For three to five minutes, Royal reports that he engaged in a “stare-down.” Another incident occurred when Royal was gathering files. Turning around, she encountered the Assistant Manager, Robin Granger, who was standing behind her. She then stumbled into him with her whole body. Brazil, Royal’s supervisor, was present when this happened.
She alleged that she complained but was told to let it go and that stated, in an apparent reference to one of the men who just got out of jail, “you know how men are like when they get out of prison.” At a meeting, Royal complained of being sniffed but one of the men claimed that it was a medical condition that she was misinterpreting. The other man however said that he “needed to get a release.” She continued to complain and was later fired. The company later asserted “at oral argument that Royal’s offenses were swatting a fly harder than was necessary and slamming a door.”
The company’s response to the alleged harassment greatly strengthened the case against it. Yet, her complaint was dismissed. The Fifth Circuit ruled that she made out a case. The court found “that the magistrate judge also overemphasized the lack of physical contact. Certainly, lack of physical contact is a factor to consider. But it is hardly dispositive.” It is hard to see how, if true, forcing a woman to put up with being sniffed and shadowed in a sexual way would not be harassment. This was a pattern of conduct raised to the company and allegedly ignored with the result that the woman was ultimately fired.
The Court added “Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.”
That conclusion seems abundantly clear. Of course, there are exceptions . . .
Here is the opinion: 12-11022-CV0