Whiff of Sexism? Fifth Circuit Rules Constantly Sniffing Woman Is Form Of Sexual Harassment

US-CourtOfAppeals-5thCircuit-SealThe 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

18 thoughts on “Whiff of Sexism? Fifth Circuit Rules Constantly Sniffing Woman Is Form Of Sexual Harassment”

  1. everything seems to be happening in texas.. the no education of our children thru common core. shoddy legal work on all fronts. and as many psychos as florida…

  2. it’s bad enough when they are sniffing but when the start spraying it’s time to get them fixed.

    of course that shouldn’t keep them from voting for the turley blog

  3. What Mike A. said.

    F Braun,

    I think you’ll find Texas is polarizing in generating opinions about it, even among present and former residents.

  4. I agree with the appeals court that this woman did make her case for a valid sexual harassment claim. As Mike A. suggests, a surprising good outcome for a 5th Circuit decision.

  5. One minute we are discussing a Federal Law case, the next minute one of the comments is in a political rant. If you do not like Texas – please have the good manners to go to Texas & see for yourself. Remember the Alamo !!

  6. Mike A is on to something.

    When I think of Epigovernment, a la Oil-Qaeda and its influence on the Judicial Branch of Government in that federal circuit, the statistics for judges and lawyers who worked as legal counsel for Oil-Qaeda prior to taking the bench (notably in Texas and Louisiana) is telling.

  7. “On the other hand, what is surprising to me is that this very sensible opinion is a product of the Fifth Circuit.” (Mike A)


  8. It should be remembered that the appeal in this case was from a summaary judgment dismissing the complaint on the grounds that the conduct in question was not “objectively unreasonable” or a violation of Title VII as a matter of law. The Fifth Circuit reversed and sent the case back for trial. So Anon’s defense of the lower courts in Texas is a tad unwarranted. On the other hand, what is surprising to me is that this very sensible opinion is a product of the Fifth Circuit.

  9. The behavior of these two hound dogs was reprehensible. I’m glad she got her day in court and survives any coming appeals, to prevail. That would smell of sweet success and justice.

  10. Can’t believe it was won in Texas????!!!! Why don’t you come live here and meet the people. Stop relying on cartoony and inaccurate characterizations. Most Texans have a deep respect for the Rule of Law, the Constitution, and the sovereignty of the individual. I don’t know anyone who would think the behavior in this story is anything other than a violation of an individual’s sovereignty.

    Yikes. Maybe you’re just trolling

    1. I LIVE in Texas and have spent the major portion of my life here. While I quite agree that most ordinary Texans are great folks, that is NOT reflected in our current political leaders here. It is especially bad in our courts. They are nothing but political hacks, and the Chief Justice of the Court of Criminal Appeals is the worst of the bunch, She has violated every judicial canon by accepting kickbacks and the use of cars. She has lied on her financial statements, and has arbitrarily refused to allow an appeal of a death penalty case by refusing to stay open later than ten minutes after closing. She even refused to let DNA testing prove the innocence of a man convicted of rape and murder. She simply said that it takes a higher bar to overturn a conviction. One of the few good things W Bush did was to grant a pardon to this man. The judges are so bad that they basically care less about what the law says. My former roommate in college is now an attorney who is quite successful in righting wrongs perpetrated by the Texas courts. He has filled me in on the stunts most of these partisan hack clowns engage in.

      So I am astounded that any Federal judge in Texas would actually follow the law. This is an exception rather than the rule. In fact, a political hack judge upheld the firing of a corporate pilot when he turned 60, even though there was NO regulation requiring that, and it violated US law! So I hope that you can understand my astonishment at this ruling.

  11. I know what this woman is talking about. The behaviors have gotten so much worse. Males do sniff women, it’s normal. But this degree of sniffing is beyond normal. Back in the day, when I worked, it was a given that you’d be expected to give sexual favor to someone. When a woman refused they would move on to the next one and see if she’d comply. I suppose in a one woman work environment there wouldn’t be another. The behavior of these men seem like they are cavemen playing a one-upmanship game. It’s horrible to be at work, because you need money, and be distracted by such animalistic behavior.

  12. I cannot believe this was won in Texas! The conduct had to be really bad for her to win here. Bush must have fallen down on his job to pack the Federal courts.

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