Today’s post is about a 12/20/2019 update from the EEOC who sued an employer for failing to act on information it was thoroughly made aware of to protect an employee from repeated sexual harassment by a superior. This is another reminder that every employer, in order to protect itself and its employees should have and enforce anti-harassment policies that make clear that harassment is illegal both on and off the clock and includes harassment that is Internet and/or Social Media based.
Pilot Repeatedly Posted Sexually Explicit Photos of a Flight Attendant To Websites for Years, Federal Agency Charged
SAN ANTONIO, Texas – United Airlines, Inc., a Chicago-headquartered international airline operating in over 300 airports across five continents, has agreed to pay $321,000, plus attorney’s fees, to settle a sexual harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission, the federal agency announced today.
The EEOC’s lawsuit alleged that, over the course of many years, a United captain frequently posted explicit images of a flight attendant to multiple websites, without her consent, making reference to her name, home airport, and the airline’s tagline “Fly the Friendly Skies.” The EEOC’s suit asserted that the images were seen by co-workers of the flight attendant, as well as untold numbers of potential passengers, causing her humiliation and embarrassment and adversely affecting her work environment.
The EEOC maintained that United failed to prevent and correct the pilot’s behavior, even after the flight attendant made numerous complaints and provided substantial evidence to the airline of the pilot’s conduct. The EEOC asserted that the pilot was allowed to retire with benefits despite initiation of a criminal prosecution by the U.S. attorney’s office under federal internet stalking laws.
Such alleged inaction when an employer is aware of sexual harassment violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, including harassment that creates a hostile environment. The EEOC filed suit in U.S. District Court for the Western District of Texas, San Antonio Division (EEOC v. United Airlines, Inc., Civil Action No. 5:18-cv-817) after first attempting to reach a voluntary settlement through its conciliation process.
“Employers are best served when they fulfill their obligation to be diligent in preventing and correcting sexual harassment, whether the offensive conduct takes place in the workplace or involves misconduct by an employee on the internet that affects the work environment,” said Philip Moss, a trial attorney in the EEOC’s San Antonio Field Office. “This resolution can serve to send a message to employers that they should have robust anti-harassment policies that are vigorously self-enforced.”
The consent decree resolving this case, approved by U.S. District Judge Xavier Rodriguez, requires the company to pay monetary damages of $321,000, plus attorney’s fees for the flight attendant and to provide notice to company employees of their protections under Title VII. The decree further requires the airline to revise its sexual harassment policies explicitly to include harassing conduct perpetrated through the internet or social media and affecting the work environment – whether on or off duty.
EEOC Supervisory Trial Attorney Eduardo Juarez of the EEOC’s San Antonio Field Office explained, “Employers must not ignore harassment complaints simply because the harasser holds a position of authority.”
Robert A. Canino, regional attorney of the EEOC’s Dallas District, added, “This case highlights the issues of employer accountability for harassment in the modern workplace. Employee workdays and jobsites are no longer defined by timecards and the walls of a building, but by the breadth of a digital day and the reach of electronic communications. The policy United has agreed to implement can perhaps serve to provide ideas for other companies adapting to the increased risks posed by employee misuse of technology.”
The flight attendant who intervened in the EEOC’s federal lawsuit was individually represented by attorney Colin Walsh of the Austin, Texas office of Wiley Walsh, P.C.
The San Antonio Field Office is part of the EEOC’s Dallas District Office, which is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Texas and parts of New Mexico.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.
Sexual Harassment Notes
Employer Coverage – 15 or more employees
- Non-Federal Employees, 180 days to file a charge (may be extended by state laws)
- Federal employees have 45 days to contact an EEO Counselor
(a) Harassment on the basis of sex is a violation of section 703 of title VII. 1 Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
(b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
(d) With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.
(e) An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.
(f) Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under title VII, and developing methods to sensitize all concerned.
(g) Other related practices: Where employment opportunities or benefits are granted because of an individual’s submission to the employer’s sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.