A point of hot debate in sexual harassment cases is whether the alleged harassing conduct is sufficiently severe or pervasive. In some cases, the courts seem to confuse the standard, ruling that the harassment has to be both severe and pervasive. However, that is not the standard. This issue was raised in a recent Fifth Circuit case,
Royal v. CCC&R Tres Arboles LLC. In this novel case, sexual harassment that occurred for only a short period of time was still upheld as sufficiently pervasive to state a claim.
Tonia Royal had only been working at a leasing officer of an apartment complex for a few days. Two male maintenance employees came into her office several times every day to sniff her. Her office was very small. At one point, one of the men sat facing her, visibly aroused and engaged in a staring contest with her. On another occasion, Royal was collecting some files, and when she turned around, she walked into the Assistant Manager, who had been standing behind her silently. Although none of the men ever touched her, Royal was very uncomfortable with their conduct.
Royal Complained About the Harassment
When Royal complained about the men's daily harassment, she was told to let it "slide." The Assistant Manager tried to excuse the men's behavior by saying something to the effect of, "you know how men are when they first get out of prison." No action was taken to stop the harassment. Royal was subsequently terminated for "inappropriate behavior in the workplace" which, turned out to be slapping flies with excessive force and slamming a door. The trial court granted summary judgment for the employer, however, the Fifth Circuit reversed.
The Big Surprise
The fact that the court found this behavior physically threatening, without actual physical contact, is a bit surprising for some. For many years, courts have relied on prior decisions which held that the lack of physical contact warrants dismissal of sexual harassment claims. But in Royal the Fifth Circuit stated that, "[c]ertainly, lack of physical contact is a factor to consider. But it is hardly dispositive."
In this case, the court noted that the alleged conduct occurred in a small space and allegedly was engaged in by men who had been in prison. Based on these and other facts, the court held their conduct could be seen as "physically threatening." Indeed, it could easily be argued that a man sitting with an erection, silently staring at a woman and saying nothing could be more threatening than actual physical touching, depending on the situation.
Pervasive Does Not Require a Long Period of Harassment.
In many cases, the challenge in making out a harassment case is showing that the harassment is "pervasive." In this case, the lower court said Royal's claims were not pervasive, while the circuit court disagreed. The lower court relied on cases which incorrectly used a "severe and pervasive" standard. The Fifth Circuit clarified, however, that the correct standard is "severe
or pervasive." As the Fifth Circuit noted, here the time frame was shorter, as Royal only worked for the apartment complex for four days. Yet, there were so many incidents in those four days that the harassment could reasonably be considered pervasive.
If you believe that you are being subjected to severe or pervasive sexual harassment in the workplace, call our office for a consultation at (205) 265-1880 or contact us online.