Is Sniffing Sexual Harassment?

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.