Denver, CO- In a recent U.S. Appeals Court for Fifth Circuit decision, justices said that sniffing a coworker in a sexually suggestive manner can be considered sexual harassment and is grounds to file a civil suit.

The case centers on a Dallas woman who worked in the office of an apartment complex and was “sniffed in a sexually suggestive manner” by two maintenance workers on her first day of work. The woman complained about the incident to her supervisors and a few days later was fired, for what she believed was retaliation for complaining.

The woman filed a civil suit alleging retaliation and sexual harassment, but a district court dismissed her claims, stating that the “alleged misconduct was not objectively unreasonable nor a practice made unlawful by Title VII.”

The U.S. Appeals Court was tasked with determining whether the behavior was in fact sexual harassment and whether the woman could move forward with her retaliation claims.

According to the woman, the two maintenance workers would enter the office and hover over her, sniffing her as she worked. She stated that the men did this twelve times over a four day period and sometimes they would come alone or together. On occasion the men would sniff after she exited the bathroom.

The court documents stated that she told the two men she did like the behavior and asked them to stop. When they didn’t she complained to her supervisor who told her to let the incidents slide saying, “you know how men are when they get out of prison.”

The following day, there was a staff meeting in which employees were encouraged to get “things off their chest.” During the meeting the woman said she did not like for the men to sniff over her all the time. One of the maintenance workers said he had a medical condition and the other maintenance man said he “needed a release.”

After the meeting the women was called to her supervisor’s office and again raised concerns about the men’s behavior. The woman was fired during that meeting for such minor offenses such as slamming a door too hard and swatting flies harder than necessary.

While the district court determined sniffing an employee was not sexual in nature and therefore no sexual harassment, the appeals court disagreed.

In their summary judgment, justices for the appeals court found that the sniffing was in fact a violation of Title VII, stating, “sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on” the complainant’s sex, adding that it would be hard to believe the men would hover over the complainant if she were a man.

The court not only agreed that the sniffing was sexual harassment, but the frequency of the behavior was enough to fall into the pervasive standard and the woman’s case was remanded for further proceedings.

What we can take from this decision is that sexual harassment does not only involve unwanted touching or comments, but can also include other behaviors which are sexual in nature such as sniffing an employee.