Woman fired after getting sniffed by men 24 times may have a retaliation claim

nose.jpgPlay some Skynyrd, man!

(Just pretend the song is about reckless indulgences in the workplace, rather than drugs and needles and such, k?)

Well, this is a new one for me.

A woman claimed that she was employed as a leasing manager for four days. And during those four days, two male co-workers sniffed her 12 times each.

*** Carries the one, curses, grabs calculator ***

The woman further claimed that, shortly after she complained to her supervisor about the sniffing, she was fired without explanation.

Sounds like we may have viable retaliation claim: (1) complaint about sexual harassment; (2) termination; (3) complaint caused termination.

Amazingly, 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. To paraphrase the lower court’s logic: “It’s not like these guys grabbed her or anything. And besides, it was harassment, not sexual harassment.”

The Fifth Circuit Court of Appeals in this opinion was all like, “WTH!” Wait, the court actually said this:

We hold that there is a genuine dispute of material fact whether the maintenance men’s behavior violated Title VII….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. Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.

Remember, sexual harassment can take many forms in the workplace. When you train your employees, and especially your supervisors who are tasked with receiving complaints of sexual harassment, educate them about the many ways in which an employee may be sexually harassed.

Including sniffing.

  • Employee claims she was harassed by excessive sniffing, and the Employer’s side of the story? “[T]he CCC&R brief does not address the reasons for Royal’s termination. As we have said, at oral argument, CC&R stated that Royal slapped flies with excessive force and slammed a door.” Okay then . . . .

  • Malvi Lennon


  • I smell a rat. This has to be analyzed by the frequency or severity of the sniffs. A sniff is no more a just a sniff than a kiss is just a kiss. Many dogs sniff, and we know those sniffs can be publicly embarrassing (to us, not the dog). If the co-worker in question was like one of those dogs, maybe one sniff would be enough. I’m just sniffing for evidence, I admit. But maybe Exhibit “A” should be the victim’s perfume. I mean, is the use of this particular perfume a form of “implied consent” to be sniffed? Let it not be said that a creative Plaintiff’s attorney is without an equally creative nemesis.