Dismissal of claim for sexual harassment does not mean the battle is over

By Brenda T. Redfern

Consider these facts: You hire a female to work as your leasing manager for your apartment complex on Monday, August 3rd. The manager’s workplace is a desk in a small front office. During her first week, two male maintenance workers enter her office and hover over her at her desk and "sniff" her. The two men sometimes go to the office alone and at other times go together. Despite being told several times by the female worker that their behavior was bothering her, the men continued the conduct. In fact, over the course of her first few days, the men "sniffed" her twelve times each.

On Wednesday of this first week of employment, the female worker complained to her supervisor. The supervisor responded to "let it slide" because "you know how men are like when they get out of prison." By Thursday, the supervisor decided to have a meeting to air the complaints. In the meeting, the female worker said that she did not like the men "sniffing" her. One maintenance worker claimed to have a medical condition, while the other worker stated that he "needed to get a release."

How would you handle this situation? What do you do now? In this case, the supervisor fired the female worker the same afternoon as the group meeting. The supervisor gave no reason for the firing. Unsurprisingly, the female worker sued for sexual harassment and retaliation. Before the case was ever tried by a jury, the lower court granted summary judgment in favor of the employer. The lower court determined that the conduct of the maintenance worker was not objectively unreasonable so as to create a hostile work environment so there could be no sexual harassment. The lower court then concluded that, because a reasonable person would not believe that sexual harassment had occurred, the female could not have been fired for complaining about an unlawful employment practice and thus her claim of retaliation was unsupported.

The employer was probably rejoicing at this point, but the celebration didn’t last long. The U.S. Court of Appeals for the Fifth Circuit in Royal v. CCC&R res Arboles, L.L.C. considered the case on appeal. Click here to read the decision.  For whatever reason, the female worker did not appeal the sexual harassment claim itself, but only appealed the claim of retaliation. Needless to say, the Fifth Circuit reversed the judgment and sent the retaliation claim back to the lower court for trial.

In evaluating the case, the Fifth Circuit first discussed whether the maintenance workers’ conduct could constitute an unlawful practice under Title VII of the Civil Rights Act of 1964. The conclusion was that a reasonable jury could determine that the workers’ conduct violated Title VII because it was carried out in a small, confined space over a short period of time with multiple instances of such behavior. The appeals court concluded that, in fact, "the only thing interrupting this conduct seems to have been [the female worker’s] termination." The court then addressed whether the female could have been fired in retaliation for her reporting of the conduct. The employer claimed the female was fired for "swatting a fly harder than was necessary and slamming a door." The court noted that those reasons are "legitimate," although they may not be "plausible." However, the termination of the female worker on the same day as the meeting was clearly an adverse employment action that, combined with all the other factors, could lead a reasonable jury to believe that the termination was done in retaliation. Therefore, the case was sent back to the lower court for a jury to decide.

If you are thinking that this must be a very old case because the facts are so far-fetched, think again. These events occurred in 2009 and the Fifth Circuit just issued its opinion on November 21, 2013. Even though Title VII has been around since 1964, it does not mean that employees know what they should and should not do in the workplace, nor does it mean that supervisors know how to properly handle complaints. Many employers become trapped in a false sense of security that everyone knows how to act. Don’t be one of those employers. A training program for all employees—both workers and supervisors—will educate your workforce on acceptable behavior and will go a long way in defending against claims of this kind.

If you need assistance training your workforce you should call your attorney to review your current program, develop a training session for you and do on-site training at your convenience. Don’t wait until you face a claim in court to decide to be proactive!