by David Theard
In a sexual harassment and retaliation lawsuit brought by an employee who had worked for an employer for a grand total of four days, the U.S. 5th Circuit Court of Appeals—which covers Louisiana, Mississippi, and Texas—found that a reasonable jury could determine that the employee's coworkers' actions rose to the level of actionable sexual harassment and retaliation. The 5th Circuit also made clear that an employee advancing a hostile work environment claim based on her gender must prove that she was subjected to a severe or pervasive atmosphere of unwelcome sexual harassment.
Sniffing and other boorish behavior
Tonia Royal was hired by CCC&R Tres Arboles LLC to work as a leasing manager and assigned to the only desk in a small front office. Her supervisor was Asia Brazil. Royal claimed that immediately after she began her employment, two maintenance workers started coming into her office and sniffing.
According to Royal, the workers sometimes hovered and sniffed directly over her head as she sat at her desk, and other times they would sniff when she exited the restroom. She said they sometimes came into her office alone and sometimes together, but both of them engaged in the sniffing at least a dozen times over a four-day period. She also claimed she told them several times that their behavior offended her, but they were undeterred.
On one occasion, according to Royal, one of the maintenance workers sat on a cabinet behind her with his legs apart, only an arm's length away. She claimed the worker, who was wearing shorts, was visibly aroused and stared at her for three to five minutes. In another incident, she was gathering files when she turned around and stumbled into Robin Grainger, the male assistant manager of the complex, who was standing behind her. This time, Brazil was present and observed the incident.
Royal said she complained to Grainger about the sniffing only two days after she was hired, but he told her to "let it slide," further stating, "You know how men are like when they get out of prison." Brazil held a staff meeting to clear the air the following day.
Royal complained at the meeting that she didn't like the maintenance workers sniffing over her all the time. She said one of the maintenance workers responded that he had a medical condition that caused him to sniff and the other said he "needed to get a release." Another coworker allegedly told the maintenance worker that he "got [his] mind on the wrong thing." Royal took the "release" comment as sexual innuendo.
After the staff meeting, Royal met with Brazil and Grainger again to complain about the maintenance men's conduct. The same afternoon, only the fourth day of her employment, Royal was fired. She said Brazil gave her no reason for the termination, but Brazil said it was because Royal swatted a fly harder than necessary and slammed a door. Brazil further stated that she made the decision alone without any input from Grainger.
After filing a charge with the Equal Employment Opportunity Commission (EEOC), Royal filed suit, alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. CCC&R asked the court to dismiss the lawsuit.
The district court granted the motion, reasoning that since no one touched Royal (apart from when she fell into Grainger) and the maintenance worker's "release" comment wasn't directed at her, the conduct wasn't objectively offensive enough to be a violation of Title VII. The district court further determined that a reasonable person wouldn't have believed the conduct violated Title VII and Royal therefore couldn't prove her retaliation claim.
Royal appealed the district court's ruling on her retaliation claim, but not her hostile work environment claim, to the 5th Circuit. The appellate court nevertheless analyzed both claims to determine whether a reasonable person could believe that the coworkers' conduct constituted an unlawful employment practice under Title VII.
5th Circuit reverses district court
To avoid summary judgment (pretrial dismissal) on a retaliation claim, an employee must show she had a reasonable belief that her employer engaged in an unlawful employment practice. The 5th Circuit found there was a genuine question of material fact about whether the maintenance men actually violated Title VII; hence, it wasn't necessary to examine Royal's reasonable belief.
The appeals court next analyzed whether the conduct the maintenance men allegedly engaged in violated Title VII.
One element of proof for a hostile work environment is whether the offending conduct was based on the plaintiff's sex. CCC&R argued that the men's conduct wasn't based on Royal's sex. The 5th Circuit disagreed, stating that "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 [her] if she were a man."
The 5th Circuit noted that CCC&R offered very little in the way of a nonsexual explanation for the men's conduct. Moreover, the other employees' reactions — including Grainger's comment that "you know how men are like when they get out of prison" and the maintenance man's statement that he "needed a release" — suggested they understood the conduct was based on sex.
Additionally, even if the "release" comment wasn't directed at Royal, it addressed the situation she complained about. Therefore, the 5th Circuit concluded that a reasonable jury could decide that his behavior was based on her sex.
The 5th Circuit also disagreed with the district court's determination that the conduct wasn't severe and pervasive enough to constitute sexual harassment. The appeals court noted that the correct standard is whether the conduct was severe or pervasive, meaning the employee need only prove the conduct was egregious or sustained, not both.
Observing that Royal was confined to a small office where each of the maintenance men engaged in the offensive conduct at least 12 times over a four-day period, the 5th Circuit concluded that their conduct certainly could be considered physically threatening and humiliating enough to be severe and frequent enough to be pervasive.
The 5th Circuit also found that Royal established a causal connection between her objection to the conduct and her termination. The court noted that she was terminated the same day she complained about the men's behavior. Additionally, the decision maker, Brazil, was present when one of the maintenance men made the comment about needing a "release."
According to the 5th Circuit, the temporal link between Royal's complaint and her termination precluded summary judgment. Thus, the case was sent back to the district court for a full jury trial on the merits. Royal v. CCC & R Tres Arboles, 736 F. 3d 396 (5th Cir. 2013).
Employers must take all complaints about sexual harassment — or any other type of workplace harassment — seriously, no matter how new to the job the complainer is or how minor or insignificant the alleged behavior may seem. As the 5th Circuit explained, an employee need only show the offensive behavior was either severe orpervasive, not both.
The appeals court also made clear that to advance a retaliation claim, an employee need not show that actual unlawful conduct occurred. She must show only that a reasonable person could believe the conduct she complained of was unlawful under Title VII.
David Theard is an associate in Jones Walker's labor relations and employment practice. He can be reached in New Orleans at email@example.com 504-582-8402.