Sniff, Sniff: The Pungent Odor Of Sexual Harassment?

| William A. Schreiner, Jr.

Ah, the smells of the holiday season: fresh-cut evergreen trees, just-baked cookies and other goodies, bowls of tasty fruit punch.  Take a deep whiff wherever you are.  Breathe it in deep. 

But be careful about sniffing those smells, though. 

That is the apparent lesson from the Fifth Circuit Court of Appeals’ decision in Tonia Royal’s retaliation lawsuit against her employer, an apartment management company named CCC&R Tres Arboles.  The appellate court held that the trial court incorrectly gave the apartment company summary judgment, because too many material facts about the basis for Ms. Royal’s firing were in dispute.  And many of those facts relate to the behavior of other CCC&R employees, who Ms. Royal alleged sexually harassed her by sniffing her in a rather curious and uncomfortable manner.  

According to Ms. Royal’s allegations, we’re not talking about an occasional whiff of the air here.  Nor are we talking about a device used in Colorado to sniff out marijuana – which is legal to use there but gives off an illegal odor.  Objectively viewed, Ms. Royal’s allegations – if true – show that she was subject to some rather bizarre behavior during the four days she worked for CCC&R, as the court explained:

“…two maintenance workers would enter her office and 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…Sometimes each would come alone, and sometimes they would come together.  Royal told them several times that she did not like their behavior…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.”

No, we’re not making this up. 

Ms. Royal complained to her boss, who told her to “let it slide,” and then added this wonderful phrase: “you know what men are like when they get out of prison.”  Believe it or not, the facts get curiouser and curiouser: at a staff meeting the boss called to tell the other workers to stop sniffing Royal, one blamed his sniffing on a medical condition while another said he “needed to get a release.”  Rather than instruct the workers to cut it out, the company made the odd decision to fire Ms. Royal just after this staff meeting.  Royal sued the company, alleging sexual harassment and retaliation under Title VII of the Civil Rights Act, among other things.  The trial court granted CCC&R’s motion for summary judgment on her Title VII claims, holding that because no coworker touched Royal, and because the “get a release” comment may not necessarily have been sexual in nature or directed at Royal, she had not made out the prima facie case needed to move to trial under the standard set forth by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green We’ve written a fair amount about that standard

That decision didn’t pass the smell test with the Fifth Circuit.  Overturning the trial court’s decision, the judges held that Royal had made her prima facie case by showing that a reasonable jury could find that the maintenance workers’ conduct – hovering over her and sniffing, repeatedly – was “physically threatening, humiliating and frequent,” three of the factors that define sexual harassment under Title VII.  Royal’s allegation that a dozen sniffing events happened in the “compressed time frame” of her four-day employment with CCC&R added to the possibility that this odd behavior was sexual.  Finally, the appellate judges reasoned that the lower court “overemphasized the lack of physical contact” between Royal and her co-workers, citing prior cases where sexual harassment had been found without physical touch between the harassed and the harasser. 

Taken all together, the court held CCC&R shouldn’t have been awarded summary judgment, so Royal’s case will proceed through more litigation and toward trial.  If Ms. Royal wins a large judgment, CCC&R could wind up paying through its you-know-what.