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The Labor & Employment Report

Sniffing Can Be Sexually Harassing

Posted in Employment Discrimination, Laws & Regulations, Litigation, Sexual Harassment

It dumbfounds me how creative people can be in coming up with new ways to harass others.  Take, for example, the recent case of Royal v. CCC&R Tres Arboles, LLC, which involved a complaint of sexual sniffing.  Yes, sniffing.  Like a dog.

A female employee worked as an apartment complex leasing manager for only four days.  But during that time, she was regularly visited by two maintenance men who, according to the employee, hovered over her and sniffed her in a sexually suggestive manner.  They refused to stop, even when she told them that she didn’t like their behavior.  One of them also stared at her while obviously aroused.  When she complained to a manager, he told her “to let it slide” and also said, “You know how men are like when they get out of prison.”  (Was that supposed to be reassuring somehow?)

The next day, a meeting was held so staff members could “get things off their chest.”  The female employee complained about the sniffing, to which one of the maintenance men responded that he had a medical condition and the other said that he “needed to get a release.”  Later that same day, the female employee was fired without being given any reason.

The employee sued for sexual harassment and retaliation under Title VII.  As the U.S. Supreme Court stated in Faragher v. City of Boca Raton, harassment must consist of more than “simple teasing, offhand comments and isolated incidents (unless extremely serious).”  To constitute illegal sexual harassment, the conduct must be based on sex, and it must be severe or pervasive (meaning that it occurs repeatedly over a period of time).  A magistrate judge found that the sniffing conduct was not objectively offensive or pervasive, and therefore did not support a Title VII claim.  The judge granted summary judgment to the employer and the case was dismissed.

On appeal, however, the U.S. Court of Appeals for the 5th Circuit disagreed.  In this particular case, the 5th Circuit found that the conduct could rise to the level of actionable harassment, stating that, ”The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on [the employee's] sex.”  The 5th Circuit went on to observe, with a touch of snarkiness, ”Indeed, it is difficult to imagine the maintenance men sniffing and hovering over [the employee] if she were a man.”

The 5th Circuit also noted that the conduct was pervasive, occurring approximately 12 times over 4 days.  It stated, with another touch of snarkiness, “The only thing interrupting this conduct seems to have been [the employee's] termination.”  (The 5th Circuit was on a roll, which makes for an entertaining read).

What this case establishes is that actions that don’t normally have a discriminatory meaning can take one on, depending on the context.  Employers should not be too quick to dismiss as meaningless behaviors that don’t fall into the normal types of “harassing” conduct.  It’s important to take a look at the whole picture.