Employers in the aviation industry face a particular set of challenges in dealing with sexual harassment reports from employees, both on and off duty. This article sets out their duties and potential liabilities. It also highlights possible legislative developments in this area. Contributors Sarah Pierce Wimberly, Jessica Lynn Asbridge of US law firm, FordHarrison LLP

The #MeToo movement has now touched nearly every US 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 legal actions 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 responding to and investigating any report of assault or harassment promptly. 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. To 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% had reported those incidents to their employer. AFA also claimed that 18% of flight attendants had experienced harassment within the last year and that 68% 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 labour 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 the purposes of Title VII of the Civil Rights Act (which prohibits sexual harassment). 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 carry his or her harassment over 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 his or 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 17 May 2018, Representative Peter DeFazio introduced a bill entitled Stop Sexual Assault and Harassment in Transportation Act (HR 5857). 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 view from other jurisdictions;

Canada
In Canada, there is a Bill before Parliament that will amend the employment standards legislation that applies to airlines. Bill C-65 amends the Canada Labour Code by requiring employers to have a sexual harassment policy and to report to Parliament on the number of complaints. All managers must be trained in preventing sexual harassment and complainants must be given the option of a third-party investigation. Where complaints are not adequately dealt with, the Minister of Labour has the power to investigate.

Tara Erskine, Mathews Dinsdale

UK
In the UK, a group of politicians called the Women and Equalities Committee recently published a report following an inquiry into workplace sexual harassment. The Committee highlights five areas where it calls on the UK government to take action. The Committee makes it clear that sexual harassment should be a business priority on par with anti-money laundering or data protection laws. It proposes placing a mandatory duty on employers to protect workers from harassment and victimisation backed up by significant financial penalties for breaching the duty. It also considers that regulatory bodies should take greater responsibility and ensure that their members are taking actions to prevent sexual harassment. Finally, the Committees calls for better control and regulation of non-disclosure agreements and condemns their use in sexual harassment cases, where the effect is to prevent a victim from even being able to talk about it.

Lucy Lewis, Lewis Silkin

Kazakhstan
There is currently very limited legislation relating to sexual harassment in any sector in Kazakhstan, and none specific to the airline industry.

Yelena Manayenko, Aequitas

Argentina
To date, there have not been reports of harassment claims in the airline industry. However, Argentina’s Labour Contract Law prohibits sex discrimination and the broader anti-discrimination law (23592) prohibits and imposes sanctions for discriminatory conduct. Employers also have a duty to keep employees safe: this includes protecting them from harassment and discrimination.

Florencia Funes de Rioja, Funes de Rioja & Asociados

France
In France, sexual harassment is a criminal offence, for which both the company and the alleged perpetrator can be liable. It constitutes valid grounds for dismissal for serious misconduct. The legislative framework is currently under review in Parliament in order to create tougher legislation with regards to all types of unwanted sexual behaviours.

Arnaud Teissier and Fadi Sfeir, Capstan Avocats

The Netherlands
The issue of sexual harassment in the airline industry has not attracted specific attention in the Netherlands. After #MeToo went viral, the ‘Weinstein effect’ was clearly visible in the entertainment industry. Now it has spread to all types of employers in different industries and has become a topical focus point.

Marieke ten Broeke, Bronsgeest Deur Advocaten

Russia
Although the topic of sexual harassment is vaguely regulated by Russian law and mainly discussed in the context of criminal liability, there is an increasing trend for companies (including companies in the airline industry) to adopt internal policies imposing zero tolerance for cases of sexual harassment in the workplace.

Maria Gnutova, ALRUD

All contributing firms in this article are member firms of Ius Laboris