January 15, 2014
Sexual harassment: Appeals court sets out new rules for claims

On November 21, 2013, the U.S. 5th Circuit Court of Appeals—which covers Louisiana, Mississippi, and Texas employers—issued a new decision making it easier for employees to claim sexual harassment in the workplace. It's an important ruling, and we wanted to tell you about it.

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'Men are like that when they get out of prison'

Tonia Royal had a very brief career working in a small front office of an apartment complex in Dallas owned by CCC&R. Her tenure was short—a total of four days—but not very sweet.

According to Royal, two maintenance workers began coming into the office and "sniffing" her. That's right—they would stand over her and sniff while she was at her desk. Sometimes they sniffed her as she left the bathroom. How often? She alleged that each worker sniffed her about 12 times over a four-day period. But wait—there's more.

Royal claimed that one of the men sat on a cabinet behind her with his legs open, a mere arm's length away, and he was visibly aroused. He then engaged in a "stare down" with her for three to five minutes. She complained to her manager, who told her to "let it slide" and said something along the lines of "men are like that when they get out of prison."

The manager held a meeting the following day so employees could "get things off their chest" and speak about whatever was bothering them. Royal claimed she spoke up at the meeting and, not unnaturally, said she didn't like the sniffing. The responses from the maintenance men? One stated he had a medical condition, while the other chimed in that he "needed a release." Royal and a coworker took that as sexual innuendo.

According to Royal, her manager terminated her that afternoon. The reason? The company said that she slapped flies with excessive force and slammed the door.

Lawsuit gets tossed and then resurrected

Royal sued for hostile work environment and retaliation. The trial court threw out her case, but the appeals court decided it should go to a jury. Why?

First, the appeals court said the trial court erred because it relied on some older cases that appeared to require inappropriate physical contact before an employee may assert a sexually hostile work environment claim. The court said that's wrong—and any conduct that is "physically threatening" or "humiliating" fills the bill just fine. In this case, a jury could view the sniffing and hovering in a small, confined space as harassment based on sex.

Second, a hostile environment must be based on a person's sex, not on mere dislike. The court noted that "it is difficult to imagine maintenance men sniffing and hovering over Royal if she were a man." And the company offered very little in the way of a nonsexual explanation for the conduct.

Third, the court emphatically rejected the argument that a sexually hostile work environment must be proven by conduct that is both "severe and pervasive." The court pointed out that the law is worded in the disjunctive, and conduct that is either "severe or pervasive" is sufficient. The maintenance workers' conduct was both, but it didn't need to be. As a result, Royal's claims will go to a jury. Royal v. CCC&R Treys Arboles L.L.C. (5th Circuit, November 21, 2013).

Bottom line

There are several lessons from this case. When terminating an employee, provide a better reason than she "slapped flies with excessive force." If a manager's reason for firing someone sounds flimsy, rethink whether termination is appropriate. Ask yourself how a jury would look at your explanation. Would you laugh at the reason?

Also, the court threw out an interesting idea in a footnote to its opinion. So far, in Texas, an employee engages in protected activity if she protests what she reasonably believes to be an unlawful practice. However, the court noted that the plain language of Title VII of the Civil Rights Act of 1964 seems to require that the employer's practice "actually be unlawful," which is a far cry from a reasonable belief. Think about asserting this argument.

Finally, this case is a good reminder that a workplace must be a professional environment. Even if the sniffing occurred only one or two times, it's one or two times too many.

This article was edited by the attorneys ofConstangy Brooks & Smith, LLP.

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