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Employee Claims sexual harassment, is fired for "SWATTING a fly harder than is necessary"

You Can't Make This Stuff Up - What Happened?

This company is going to be writing a very large check...

Tonia Royal worked in a small front office of an apartment complex in Dallas. While Ms. Royal only worked in that office for a grand total of four days, she went through a series of events that she will remember for her lifetime.

According to Royal, two maintenance workers began coming into the office and "sniffing" her. You read that right, they would stand over her and sniff while she was at her desk. Sometimes they sniffed her as she left the bathroom. In her four days of employment, how many times could this have occurred you ask? She alleged that each worker who did sniff her, sniffed her about 12 times. But wait, there's more.

Royal claimed that one of the men sat on a cabinet behind her with his legs open, just an arm's length away, and he was visibly aroused. He then engaged in a "stare down" with her for three to five minutes. She complained to her manager, who told her to "let it slide" and said something along the lines of "men are like that when they get out of prison."

The manager held a meeting the following day so employees could "get things off their chest" and speak about whatever was bothering them. Royal claimed she spoke up at the meeting and, naturally, said she didn't like the sniffing. The responses from the maintenance men? One stated he had a medical condition, while the other chimed in that he "needed a release." Royal and a coworker took that as sexual innuendo.

According to Royal, her manager terminated her that afternoon. What was their reasoning? The company said that she was let go for “swatting a fly harder than was necessary and slamming a door.”

Lawsuit Originally Tossed, then Renewed:

Royal sued for hostile work environment and retaliation. The trial court threw out her case, but the appeals court decided it should go to a jury. Why?

First, the appeals court said the trial court erred because it relied on some older cases that appeared to require inappropriate physical contact before an employee may assert a sexually hostile work environment claim. The court said that's wrong—and any conduct that is "physically threatening" or "humiliating" fills the bill just fine. In this case, a jury could view the sniffing and hovering in a small, confined space as harassment based on sex.

Second, a hostile environment must be based on a person's sex, not on mere dislike. The court noted that "it is difficult to imagine maintenance men sniffing and hovering over Royal if she were a man." And the company offered very little in the way of a nonsexual explanation for the conduct.

Third, the court emphatically rejected the argument that a sexually hostile work environment must be proven by conduct that is both "severe and pervasive." The court pointed out that conduct that is either "severe or pervasive" is sufficient. The maintenance workers' conduct was both, but it didn't need to be. 

As a result, Royal's claims will go to a jury: 

What It Means

Obviously, hovering over someone and sniffing them is sexual harassment.  But employers can learn many lessons here:

First, do not allow your employees to sexually harass others (Duh!)

Second, when a claim of sexual harassment is made, take it seriously (Double Duh!)

Third, while the reason for termination here was obviously wrong, the case illustrates another important point.  That is, to think about the reasoning for letting an employee go.  If a manager's reason for firing someone sounds flimsy, rethink whether termination is appropriate. Ask yourself how a jury would look at your explanation. 
Also, this case is a good reminder that a workplace must be a professional environment. Even if the sniffing occurred only a few times, that would have been too much.

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