People like to joke about a "hostile work environment."  But, what is an actual hostile work environment?  Essentially, hostile work environment means the discrimination is perpetrated by co-workers, not by supervisors.  A finding of a hostile work environment requires that 1) the employee belong to a protected group, 2) s/he was subjected to unwelcome harassment, 3) the harassment was based on the protected factor (i.e., sex, color, national origin, etc.), 4) the harassment affected a term or condition of employment, and 5) the employer should have known or did know of the harassment and failed to take action.  

In Royal v. CCC&R Tres Arboles, L.L.C., No. 12-11022 (5th Cir. 11/21/13), the court addressed alleged sex harassment.  The employer argued that the harassment was not based on sex.  Tonia Royal worked briefly for the employer in an apartment leasing office.  She started working on Monday, Aug. 3, 2009.  She worked at a small desk in a small office.  Starting on her first day, the two maintenance men would come in about twelve times each and stand over and sniff her.  They did this everyday.  She told them the conduct was not welcome, but they persisted.  They would sometimes sniff when she left the bathroom.  One of the men sat facing her, with visible arousal and engaged in a staring contest with her.  Once, Ms. Royal was gathering some files, she turned and walked into the Assistant Manager, Robin Granger, who had been silently standing behind her.  Asia Brazil, the manager, was present when this happened.   

Ms. Royal reported the harassment to Mr. Granger.  The Assistant Manager told her to let it "slide."  He added something like she knows how men are when they first get out of prison.

At a meeting held to address concerns, Ms. Royal complained about the sniffing.  One of the maintenance men said he had a medical condition.  The other said he needed to get a "release."  Another coworker said the maintenance man had the "wrong thing" on his mind.  Later that day, Ms. Royal, Mr. Granger and Ms. Brazil met for another time to discuss the new leasing manager’s concerns.  The leasing manager was fired later that day, Aug. 6, Thursday.  The alleged basis was that she swatted a fly too hard and that she slammed a door.  She was fired just four days after starting her job. 

The employer argued this harassment was not based on Ms. Royal’s gender, but offered no alternative motive.  The lower court had found that the harassment was not "serious" enough.  The lower court granted the employer’s motion for summary judgment.

The conduct, said the trial court, consisted of several, isolated incidents.  See lower court opinion here.  The district court even observed about the incident in which the maintenance man had sat facing her with an erection for several minutes, that he did not touch her or say anything to her.  But, in so doing, the court is clearly drawing its own factual conclusions, in contravention of every summary judgment precedent.  Indeed, one could argue that a man sitting with an erection, silently staring at a woman and saying nothing is more threatening than a grope or physical assault.  

And, as the appellate court pointed out, two men would not stand over a male worker and sniff some twelve times a day.  Their behavior was surely related to Ms. Royal’s gender.  Or, as the appellate court should have pointed out, there is ample basis for a jury to conclude the men’s behavior was related to the plaintiff’s gender.  

The lower court found that the "need a release" statement did not necessarily refer to sex, and it was not said directly to Ms. Royal at that meeting.  But, noted the Fifth Circuit, the remark was clearly aimed at the situation presented at the meeting.  More importantly, the lower court was inherently drawing factual conclusions in making such a finding.  The purpose of summary judgment is not to make factual conclusions but to ascertain whether there is any factual support for a particular allegation. 

The challenge in making out a harassment case is showing that the harassment is "pervasive."  In this case, the lower court said it was not pervasive, while the upper court disagreed.  The lower court relied on older cases which incorrectly used a "severe and pervasive" standard.  The Fifth Circuit says, however, the correct standard is "severe or pervasive."   As the Fifth Circuit noted, here the time frame is much compressed.  Ms. Royal worked for the apartment complex only four days.  Yet, there was were many incidents in this mere four days.  This harassment was pervasive.  

The Fifth Circuit has conveyed some expression on this issue.  In two cases, it used the severe and pervasive standard.  In one other case, it said the harassment had to be severe or pervasive.  Now, it has issued a second decision using the "severe or pervasive" standard.  This is confusing since the seminal case, Meritor Savings Bank v. Vinson, 477 U.S. 57. 67 (1986), used the severe or pervasive standard.  It appears the Fifth Circuit made a simple, but critical typographical error in the two earlier decisions. 

So, the Fifth Circuit reversed the summary judgment.  And, we must wonder how a trial judge and magistrate judge could find this conduct in a small, confined space, some twelve times or more per day to be anything but "serious."  That is, how could a judge and a magistrate judge find there to be no genuine factual issue whether this harassment was not serious?  How could the magistrate judge and trial judge find these incidents to be "isolated?"  Such a finding suggests a result-oriented decision.