The EEOC just filed a lawsuit against United Airlines alleging that it failed to protect a female flight attendant from sexual harassment by a pilot, in violation of its obligations under federal anti-discrimination law. According to an article in the Washington Post, which reported on the lawsuit, a spokesman gave the following comment on the case:
We have reviewed the allegations in the complaint and disagree with Equal Employment Opportunity Commission’s description of the situation . . . . United does not tolerate sexual harassment in the workplace and will vigorously defend against this case.
This seems like a strange position to take in a case in which the pilot whose behavior they are charged with ignoring is both serving time in federal prison for his behavior toward the flight attendant and has lost a civil lawsuit because of the damage he caused her. But United has clean hands? I’d be surprised if that were true.
Consensual Relationship . . . Followed by Revenge Porn, Stalking, and Harassment
Jane Doe, as she is called in this lawsuit, was once in a consensual relationship with Mark Uhlenbrock that lasted from 2002 to 2006. She was a flight attendant for United Airlines, and he was a pilot. The lawsuit alleges that while she allowed him to take compromising pictures and videos of her during the relationship, he used those photos to embarrass and humiliate her, as well as to interfere with her image and performance at work.
While they were still dating, he began posting pictures of her that, according to the EEOC’s complaint, included her name, occupation, and home airport. The posts, some of which included partially nude pictures in her United uniform, incorporated United’s slogans in provocative invitations—”look for her when you fly!” and “new reason to ‘Fly the Friendly Skies.'” The pictures and invitations were posted on multiple sites and seen by co-workers.
Doe demanded that he take down the posts—and terminated their relationship when he refused. His behavior, which should never have happened in the first place without her consent, then continued for an entire decade. What could she do at that point? Who could help her? A civil court helped her when it ruled in her favor in a lawsuit against him for tortious behavior and awarded her $100,000. (This type of behavior could be covered by any number of tort claims like harassment or intentional infliction of emotional distress, as well as by laws that target or incidentally cover revenge porn, as I explain here.) That court also issued an order permanently prohibiting Uhlenbrock from posting any more photos of her. The FBI helped her by arresting Uhlenbrock, charging him with stalking, and obtaining a guilty plea that led to a sentence of 41 months in federal prison followed by three years of supervised release.
What did United do to help its employee, who was being tormented by one its pilots? According to the EEOC’s lawsuit, Doe complained multiple times to the airline about Uhlenbrock’s behavior, and the airline did nothing. She alleges she was told that what she described did not constitute sexual harassment in the workplace. To say that the airline did nothing, however, is painting the airline in too kind a light. It did less than nothing: It granted him long-term disability after he was arrested and then allowed him to retire with full benefits—a month after he pled guilty to criminal stalking of his co-worker.
Sexual Harassment and the Responsibility of Employers
One would have to be living under a rock not to know that employers bear responsibility for protecting their employees from sexual harassment. But what are the particulars of the law on this subject and how might they apply to this case?
Title VII of the Civil Rights Act of 1964 prohibits, among other things, discrimination on the basis of sex. Courts began to recognize in the late 1970s that sexual harassment is a form of sex discrimination, a proposition the Supreme Court agreed with in its 1986 ruling in Meritor v. Vinson.
The basic contours of the doctrine were hammered out early on based on the guidelines adopted by the Equal Employment Opportunity Commission (EEOC), the agency charged with implementing most federal anti-discrimination laws. Those guidelines, adopted in 1980, recognized two types of harassment—quid pro quo and hostile environment. The first entails an employment benefit or burden conditioned on submission to sexual advances. The second, which is more common, occurs when unwelcome sexual conduct is severe or pervasive and has the effect of creating a hostile, offensive, or abusive working environment.
Employers can be held liable for sexual harassment of their employees, but the standards of liability differ based on the nature of the harassment and the status of the harasser. When the harasser is the CEO, the employer is strictly liable for all harassment on the theory that the harasser is the alter ego of the company and, in effect, is creating a policy of harassment. When the harasser is his target’s supervisor, the employer is strictly liable for quid pro quo harassment. The employer in that situation is also automatically liable for hostile environment harassment, but it has the opportunity to minimize liability or damages by proving it took reasonable measures to prevent and correct harassment and that the target failed to take advantage of corrective opportunities. When the harassment is a co-worker or a third party, the employer is liable for harassment when it knew or should have known about it and failed to take prompt and effective remedial action.
United Airlines’ Responsibility
Let’s assume that the allegations in the EEOC complaint in the case against United are largely true. This is a reasonable assumption both because the rate of fabricated harassment complaints is miniscule and because Uhlenbrock has already been found civilly and criminally liable for the behavior at the core of the EEOC complaint. Can the company be held liable for what happened to Jane Doe? The short answer is yes.
What Doe alleges is a type of hostile environment harassment. The conduct—posting pictures and provocative comments online, against her will—was clearly unwelcome conduct. She made this clear by asking him to remove the photos, breaking up with him, suing him in civil court, and, one assumes, cooperating with the FBI’s investigation of him on stalking charges. I’d be hard pressed to cite a harassment case in which the target made the unwelcome nature of the conduct more clear. Uhlenbrock’s conduct was also sexual in nature—he posted pictures of her partially nude, in “provocative poses,” on sites open to the public.
Was it sufficiently severe or pervasive? Can you imagine going to work when the Internet is full of half-naked pictures of you, in your uniform, appearing to invoke your employer’s advertising slogans? The conduct is severe, but it is also pervasive. Uhlehbrock posted these pictures for over a decade. Case closed.
But did it create a hostile, offensive, or abusive working environment? The EEOC’s complaint alleges that Doe suffered “humiliation, emotional pain and suffering, stress, inconvenience, loss of self-esteem and loss of enjoyment of life.” Some of her co-workers saw the images, as did other people. The complaint also alleges that his conduct forced her to change her behavior at work such as which routes to fly. Uhlenbrock, as a pilot, supervises flight attendants. Whether he served as her supervisor—necessary to trigger a heightened level of liability—is a question for the factfinder. But there’s no question that United is subject at least to the level of liability for co-worker harassment. It does not matter that the unwelcome sexual conduct did not occur on a plane or in an airport—presumably how United would define the workplace of a pilot or a flight attendant. Employers can be held liable for conduct that occurs at parties, at home, at retreats, and in many other places.
The question is whether there is a nexus between the sexual harassment and the workplace. In this particular case, that showing should be easy to make. Doe and Uhlenbrock were co-workers. Some of the compromising pictures were taken in her flight attendant uniform. Uhlenbrock provided information about Doe’s occupation and home airport in some of the postings. He also made use of the airline’s own slogans when humiliating her. He made every effort to make sure that everyone who saw the pictures knew what she did for a living and where she worked. In 2015, she took leave from her job. His behavior harmed his co-worker and damaged her career. That is more than a sufficient connection between the conduct and the workplace to make this United’s problem.
What about notice? The co-worker standard of liability means that United should have taken action to stop harassment it knew about—or should have known about had it been paying attention. United cannot possibly contend that it did not know about this conduct. Even if the company did not know initially, United was certainly on notice when it put Uhlenbrock on disability leave (with pay and benefits) because he had been arrested for stalking another United employee. And it certainly knew about it when it negotiated a retirement package for Uhlenbrock that included full benefits, which happened a month after he pleaded guilty to the federal crime of stalking. Uhlenbrock’s arrest and conviction put United on clear notice that he had been tormenting another United employee.
The EEOC lawsuit also alleges that Doe herself complained to United several times, over a lengthy period of time. Recall that Uhlenbrock was posting these pictures without her consent for an entire decade. It appears that United never conducted an investigation into her complaints, never made findings about whether its own harassment policies had been violated, and never disciplined Uhlenbrock. To the contrary, it did the opposite. It allowed him to be paid while on leave and retire with full benefits, which freed him up to serve prison time for the conduct they refused to investigate.
An employer is not relieved of its responsibility to take prompt and effective remedial action because there is a parallel civil or criminal proceeding. Title VII doctrine turns almost entirely on the internal dispute resolution process. United could not choose to let the authorities handle it (let’s assume for a moment that it will cite that as a defense in the lawsuit). Rather, it was obligated to take her complaints seriously, investigate them, make appropriate findings, and, if appropriate, take corrective measures necessary to remediate the harm to Doe and to prevent incidents like this in the future.
Conclusion
United is entitled to its day in court, but it better have some pretty compelling evidence to refute the allegations in the EEOC’s complaint. What this looks like to the naked eye is just another case of an institution’s looking the other way while one employee preys upon another. As I have discussed in previous columns (here and here), this is the type of institutional complicity that has allowed sexual harassment to go unabated for so long. And this is the type of institutional behavior that prompted millions of women to chime in with #metoo. Enough is enough.