The New Orleans-based 5th U.S. Circuit Court of Appeals has
found that sniffing may be considered sexual harassment. Denise Royal claims she was fired without
explanation shortly after she complained to her supervisor about being sniffed
by co-workers. Royal, employed as a leasing
manager for an apartment complex, claimed that two maintenance workers would
enter her office, hover over her as she sat at her desk and sniff her. The
complaint alleges that the harassment occurred about twelve times, for each
worker, over the four days of Royal’s brief employment. When she complained to her supervisor she allegedly
was told to let it go. At a meeting,
Royal complained of being sniffed, but one of the men claimed that it was a
medical condition that she was misinterpreting.
Royal was fired later that afternoon.
Royal filed suit against her former employer for sexual
harassment and retaliation. The United
States District Court for the Northern District of Texas granted summary
judgment to the employer, concluding that no reasonable juror in the woman's
shoes would have viewed herself as a victim of sexual harassment. Royal appealed and the Fifth Circuit Court of
Appeals held there is a genuine dispute of material fact whether the
maintenance men's behavior violated Title VII.
The opinion stating that the magistrate judge “overemphasized the lack
of physical contact. Certainly, lack of physical contact is a factor to
consider. But it is hardly dispositive.”
The court found 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.”
The North Carolina Equal Employment Practices Act prohibits
discrimination in employment because of sex, including sexual harassment (NC
Gen. Stat. Sec. 143-422.2 et seq.). The Act applies to all private employers of
15 or more employees. Employers with 15 or more employees are also covered by
the federal fair employment law, Title VII of the Civil Rights Act of 1964
(Title VII), which prohibits sexual harassment. Sexual harassment is an
unwelcome sexual advance or conduct on the job that creates an intimidating,
hostile, or offensive working environment. Given this broad definition, it is
not surprising that sexual harassment can take many forms in the
workplace. There are a number of steps
that you can take to reduce the risk of sexual harassment occurring in your
workplace. Such steps include, adopting
a clear sexual harassment policy in your employee handbook, conduct training
sessions for employees where you review your complaint procedure, and train
supervisors and managers on how to deal with complaints.