EEOC: Major U.S. airline ignored sexual harassment that ultimately ended in an FBI arrest and conviction

Surely, you remember the days (weeks) of horrible headlines that dogged United Airlines after the incident in which passengers filmed security dragging down the aisle a bloodied passenger who refused to give up his seat to an airline employee.

Well, United may soon be back above the fold again. And it’s for all the wrong reasons.

Too late.

The New York Times (here), Washington Post (here), Law.com (here), Law360 (here), and Inc. (here) have all reported that the U.S. Equal Employment Opportunity Commission filed this complaint in which it alleges that United failed to correct ten years of horrific sexual harassment of a flight attendant.

Here’s more from the EEOC press release:

According to the lawsuit, a United captain frequently posted sexually explicit images of a United flight attendant to various websites, making reference to the flight attendant’s name, home airport, and sometimes referencing the airline’s tagline “Fly the Friendly Skies.” The lawsuit alleges that the posts were seen by co-workers and adversely affected the flight attendant’s working environment. United failed to prevent and correct the pilot’s behavior, even after the flight attendant made numerous complaints and provided substantial evidence to support her complaints, the EEOC said.

Except the press release is a watered-down version of a federal complaint that reads like a Hollywood psychological thriller film. Here are some of the additional chillings details from the EEOC complaint:

• Over the course of a decade, the pilot regularly posted sexually explicit photos, videos, and stories about the flight attendant.
• The flight attendant filed three civil lawsuits against the pilot, received damages and an injunction, but the posts continued.
• The flight attendant complained at least four times to the airline, her attorney wrote to the General Counsel. The behavior continued.
• In 2015, the FBI arrested the pilot and seized his computers, finding evidence to support the flight attendant’s allegations.
• In 2016, United granted the pilot long-term disability, paid him, and provided benefits.
• One month after the pilot pled guilty and was sentenced to 41 months in prison, United allowed him to retire with full benefits.

Bad press? Sure. But, did United violate the law? Maybe not.

The EEOC alleges that this behavior is tantamount to unchecked sexual harassment. But this is not your typical sexual harassment case.

First, I assume that most of the pilot’s behavior was off-the-clock. Harassment initiated outside of business hours doesn’t immunize the employer. Indeed, many of the flight attendant’s co-workers discussed the postings with her at work. And, there’s little doubt that this behavior impacted the flight attendant at work. She had to plan her flight schedule to avoid the pilot. Eventually, she took FMLA. Plus, she put United on notice of the harassment.

But, here’s the more significant issue.

Was the harassment because of the plaintiff’s gender?

Indeed, sexual harassment requires that a harasser target a female victim because of her sex. That could be the case here. Or, maybe the pilot wasn’t motivated by the flight attendant’s gender so much as contempt following a failed relationship.

In other words, was this cyberbullying (not unlawful under Title VII) where the flight attendant’s female gender was coincidental?

Fight or flight?

Let’s assume that United did not violate Title VII. Ok. But, does United want to plant its flag and defend this hill on a technicality? Seemingly, the bad press would outweigh any moral victory achieved from prevailing on the merits of a Title VII sexual harassment claim.

Much like United did over a year ago, it may be time to mitigate damages and resolve this as quickly as possible.