The sexual harassment “smell test.”

When co-workers repeatedly sniffed a new hire in a “sexually suggestive” manner, the new hire could have suffered unlawful harassment, the U.S. Court of Appeals for the Fifth Circuit has ruled.

In Royal v. CCC&R Tres Arboles, LLC, Tonia Royal, a leasing manager, alleged that two male maintenance workers repeatedly hovered over her desk, “sniffed” her, and engaged in other conduct that was sexual and made her uncomfortable (such as sitting with legs spread open).

When she complained, her assistant manager allegedly told her to “let it slide” and stated something along the lines of “you know how men are like when they get out of prison.”  One of the accused said he sniffed her because he needed a “release.”

In a decision that might make Coco Chanel snort, the court ruled that unwelcome, sexual sniffing could amount to harassment, and, if the employee complained about it and was then fired, she could have a retaliation claim.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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