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Tuesday, November 26, 2013

Objectionable Sniffing Causes Suit


 By Tommy Eden




Tonia Royal was hired by CCC&R apartment complex as a leasing manager on Monday, August 3, 2009. She was fired on Thursday, August 6, by her female supervisor. Royal worked at the only desk in a small front office.

According to Royal, two male maintenance workers would enter her office, hover over her and sniff her as she sat at her desk. This occurred about twelve time, for each worker, over the four days of Royal’s brief employment. Sometimes they would come alone, and sometimes they would come together. Royal told them several times that she did not like their behavior. The men 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.
   
On another occasion, one of the maintenance workers was 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.”
   
Royal reported her complaint to the Assistant Manager who told her to “let it slide” and stated something along the lines of “you know what men are like when they get out of prison.”
   
The following day there was a staff meeting where Royal spoke up and said that she did not like for the men to sniff over her all the time. In response, one of the maintenance men claimed he had a medical condition. The other maintenance man stated that he “needed to get a release.” After the staff meeting, there was another follow-up meeting with management in which Royal again asked about the maintenance men’s conduct.
   
That same afternoon, the Assistant Manager called Royal into her office and discharged her giving no reason. CCC&R later asserted that Royal was fired for “swatting a fly harder than was necessary and slamming a door.”
   
Royal filed an Equal Employment Opportunity Commission Charge then timely sued CCC&R in Federal Court in Texas. She claimed sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 as well as violations of various Texas state laws.
   
Royal lost at the District Court then appealed to the Fifth Circuit Court of Appeals. The Court of Appeals reversed the decision, holding  “There was a genuine dispute of material fact whether the maintenance men’s behavior violated Title VII. The Assistant Manager was on notice of the sniffing, the hovering and the “I need a release" comment. 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 Royal’s sex. Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.”

The case is Royal v. CCC&R decided 11/21/2013.

Common Sense Counsel: This case should be a wake-up call for all employers to not “let slide” this type of rude and crude conduct. Having a legally compliant Professional Conduct Policy and Prohibition Against Harassment Policy, annual employee-wide training, prompt and effective investigation of complaints and taking proper remedial actions are keys to good risk reduction.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com