United States: #Metoo At 30,000 Feet: The Unique Challenges The Anti-Harassment Movement Poses For The Airline Industry

Executive Summary: The #MeToo movement has now touched nearly every U.S. workplace, and the airline industry is no exception. The impact of the anti-harassment movement on airlines, however, is unique because of the independent nature of much of its workforce and the highly regulated nature of the industry. Further, the work environment extends to the skies, and work time can include time spent off-duty on layovers.

Recent media reports and lawsuits involving claims of sexual assault and harassment filed by flight attendants and pilots illustrate some of the challenges airlines face in addressing harassment in the industry. Airlines should be proactive, updating their existing anti-harassment policies and training, in addition to promptly responding to and investigating any report of assault or harassment. Failure to take affirmative steps in properly responding to sexual harassment allegations not only exposes an airline to legal claims, but may negatively impact its reputation and employee morale.

Background: The Association of Flight Attendants-CWA (AFA) has attempted to position itself in the forefront of the #MeToo movement in the airline industry. Toward that end, AFA recently released the results of a "survey" of 3,500 flight attendants who work for 29 different airlines. According to AFA, two-thirds had experienced sexual harassment at some point in their careers, but only 7 percent had reported those incidents to their employer. AFA also claimed that 18 percent of flight attendants had experienced harassment within the last year and that 68 percent had not noticed any employer efforts to address sexual harassment.

Following AFA's press release, a bipartisan group of Congresswomen sent a letter to 30 airline executives asking them to publicly denounce sexual harassment, reinforce the role of flight attendants as safety professionals, and work with AFA and other labor unions to establish policies addressing this issue. Representative Lois Frankel, one of the letter's signatories, claimed that she sent the letter because it would "be quicker for industry leaders to step up and fix the problem rather than waiting for Congress."

Airlines seeking to update their policies face unique challenges. First, unlike traditional employers, airlines can be liable for incidents that occur both on and off duty. Courts have found that a crew member's hotel room during a layover can, in certain circumstances, constitute a part of the crew member's work environment for purposes of Title VII. This extension of the work environment is based, in part, on the fact that airlines generally reserve and pay for a block of rooms for use on a layover and transport flight crews to and from their rooms. Airlines updating their policies should carefully consider the scope of their policies and the circumstances where they apply.

Further, airlines that have knowledge of off-duty, non-work-related acts of sexual assault or harassment by a crew member against another crew member may be liable under Title VII or state law if they fail to take corrective action. Courts have found that such knowledge can constitute notice of a likelihood that the crew member will import his harassment into the work environment, potentially imposing a duty on the employer to protect the crew member's co-workers.

Many of the recent reports of sexual assault or harassment involving crew members involve claims that the carrier failed to take any corrective action. Airlines should ensure they keep individuals who report incidents apprised of the status of any investigation and provide them with the result of the investigation. Where reports of assault or harassment are substantiated or even strongly suspected, airlines should take corrective action. Even if reports cannot be substantiated, airlines should consider taking measures to ensure that the reporting party and the alleged perpetrator will not be paired together on future flights if possible under any applicable collective bargaining agreements—or at least educating the crew member on her ability to avoid flying with the alleged harasser under the carrier's scheduling system. Courts have found that an employee's fear of flying with their harasser can give rise to an objectively hostile work environment for the purposes of Title VII.

Airlines need to consider not only harassment or assaults perpetrated by crew members, but also misconduct by passengers against crew members or other passengers. On May 17, 2018, Representative Peter DeFazio introduced a bill entitled Stop Sexual Assault and Harassment in Transportation Act (HR 5857), which was discussed in a FordHarrison May 22, 2018 legal alert. This bill is aimed at stopping harassment or assaults on aircraft whether the misconduct is perpetrated by a crew member or a passenger. Several other, similar, bills and riders have also been introduced. Many Washington insiders believe some form of these bills and riders eventually will be passed. In the meantime, airlines should consider updating policies and training on those policies related to how to handle any incidents of assault or harassment occurring on aircraft.

Employers' Bottom Line: As reports of sexual assault and harassment are likely to increase in response to the #MeToo movement, airlines should consider updating their anti-harassment policies and training, complaint procedures, and disciplinary protocols.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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