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Sexually suggestive sniffing may be sexual harassment, 5th Circuit says

Posted Dec 5, 2013 9:18 AM CDT
By Debra Cassens Weiss

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A woman who was fired after complaining of sexually suggestive sniffing by two co-workers may pursue a retaliation suit, a federal appeals court has ruled.

The New Orleans-based 5th U.S. Circuit Court of Appeals ruled for Denise Royal in a Nov. 21 opinion (PDF), Texas Lawyer reports.

Royal, a leasing manager, alleges that two maintenance workers sniffed her about a dozen times during the four days worked at the CCC&R Tres Arboles apartment complex. Royal says the men, one of them a former prison inmate, came into her office and hovered over her while they sniffed her.

Royal says she complained about the conduct to supervisors and at a meeting. According to Royal, one of the men said at the meeting that he had a medical condition and the other said he “needed to get a release.” Royal was fired that afternoon.

A federal trial court had dismissed Royal’s claims for sexual harassment and retaliation after a magistrate judge found the men’s alleged conduct was not unlawful under Title VII. Royal appealed dismissal of the retaliation claim, and the appeals court ruled for her.

“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,” the appeals court said. “Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.”


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