Just When You Think You’ve Heard It All…

Nov 26, 2013

We all know as human resources professionals that the months of November and December are fraught with difficult personnel decisions: do you have a holiday party at all? If you do, do you serve alcohol? How do you balance the differing religious and cultural practices of your employees during the holidays? The list goes on and HR is expected to have the answers. I could spend blog after blog debating the answers to each of these questions and would be happy to discuss any of them with any of you, but for this last post before Thanksgiving, I wanted to share a story I read this morning.

In HR we also all have our “At What Point Did THAT Become a Good Idea?” stories. These are the stories I hear when clients call and say, “I bet you’ve never heard this one before” or “I have a new one for you.” or “Did you know last night was a full moon?” Each morning I read Employment Law 360, an email newsletter that summarizes important cases, theories and changes in employment law across the country. This morning one of the headlines in particular caught my attention, “5th Circ. Overturns Office Sniffing Sex Harassment Ruling.” Needless to say, I clicked to read the full story…

Apparently, just four days into her job as a leasing manager at an apartment complex in Texas, Tonia Royal was terminated after complaining about two co-workers “sniffing her suggestively” while she sat at her desk. A closer read of the facts revealed that Ms. Royal alleged that two maintenance men hovered over her while she was attempting to do her work, making sniffing sounds. (This is one I have not heard before, have you?)

In response to a motion by the employer, the district court judge had ruled that the “sniffing” did not rise to the level of sexual harassment under Title VII as a matter of law and dismissed the case prior to trial. However, the Fifth Circuit reversed the ruling and sent the case back to the district court for further proceedings. The Fifth Circuit ruled that although Ms. Royal did not allege she was ever touched by her co-workers, the sniffing could constitute unlawful sexual harassment.

Now of course there is more to the story, Ms. Royal was terminated right after she complained; apparently the employer presented evidence that she was fired for swatting too hard at a fly and slamming a door (you can make your own judgments about how those reasons will fair); and Ms. Royal alleged that when confronted about the sniffing, another manager responded, “You know how men are like when they get out of prison.” (Please tell me that the majority of you just said, “An apartment maintenance employee who just got out of prison?!?!”)

The legal morals of this story are numerous. It teaches important lessons about criminal background checks, complaint investigations, and the risks of terminating an employee just after she has made a complaint.

But my favorite lesson in this story remains that while you may find a time and place for sniffing the turkey, the holiday potpourri, and (my favorite) the live Christmas tree…do NOT sniff your co-workers!

Happy Thanksgiving!

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