In a year-end blockbuster, the U.S. Court of Appeals for the Fifth Circuit changed the law on what constitutes a sexually hostile work environment and suggested a different way to analyze retaliation claims for protesting such environments. Read all about it in Royal v. CCC&R Tres Arboles LLC, issued on Nov. 21.
The Fifth Circuit sketched out the facts in the case, which the district court had decided on summary judgment: The plaintiff worked at the leasing office of an apartment complex. Her career there spanned all of three days. She complained to her management that, over the course her brief employment, two male maintenance employees would come to her desk in a very small office and sniff her. Each man did so 12 times. She alleged that she complained, but her manager told her “something along the lines of ‘you know how men are like when they get out of prison.’”
At a meeting of all employees, Royal again complained about the conduct, which included smelling her over her head and when she exited the restroom. In response one man allegedly said at the meeting that he had a medical condition and the other that he “needed to get a release.”
Royal was fired for “inappropriate behavior in the workplace” which, upon questioning at oral arguments, turned out to be slapping flies with excessive force and slamming a door. The trial court granted summary judgment for the employer, but the Fifth Circuit reversed.
The big news is why. First, the panel disavowed two of its decisions on which I have been relying for years: Shepherd v. Comptroller of Public Accounts of the State of Texas (1999) and Hockman v. Westward Communications LLC (2004).
Those cases suggested that the lack of physical contact warranted dismissal. But here is the Fifth Circuit: “Certainly, lack of physical contact is a factor to consider. But it is hardly dispositive.”
That was especially true here, where the court noted that the alleged conduct occurred in a small space and allegedly was engaged in by men who had been in prison. Such conduct, according to the panel, could be seen as “physically threatening.”
Well, Shepherd and Hockman, we had a good ride for a long time. I'll miss you both.
The panel also drove a stake in the heart of the argument that, to establish a hostile environment, a plaintiff must show that the alleged conduct was both “severe and pervasive.” R.I.P that argument.
The panel tossed out a footnote. (Why is the good stuff always in the footnotes, like the best lobster meat lies deep in the claws?) In footnote No. 2, the Fifth Circuit suggested that, in retaliation cases, the thing that the plaintiff protests must actually violate the law and not merely involve a reasonable belief that the law was violated. One door closes, another opens.