Up In The Air—To Address Sexual Harassment, Follow Your Procedures

By: Amy Epstein Gluck

So, I’m on a Southwest flight to New Orleans (woohoo!!) to hang out with my FisherBroyles partners for a few days. I am psyched!

Being me, on the flight, I started chatting with the flight attendant about her job and ask her about her experiences with sexual harassment in her workplace, which, being thousands of feet in the air, is not a typical workplace.

This flight attendant told me that yes, she deals with sexual harassment frequently—from passengers, not from the crew or pilots.


(Note: my kids cringe with embarrassment every time I start full on conversations with strangers about sexual harassment or really….anything. Sorry kids!)

JetBlue Lawsuit

Not that sexual harassment by third parties is a walk in the park. Remember, we talked here about the dangers of third-party harassment and discrimination. The courts have made it clear that the source of discriminatory treatment doesn’t matter. What matters is what an employer does to prevent or address the discriminatory treatment.

Which brings me to this new lawsuit.

Man, this news about a new lawsuit filed by two JetBlue crew members against the airlines and two of its pilots—alleging sexual harassment, sex discrimination, and a hostile work environment—is hard to read.

The allegations are that two pilots allegedly gave two female crew members beer laced with a drug before one of them raped one woman during a layover and intentionally gave her sexually transmitted disease.

If true, this is of course more than sexual harassment, as alleged by the complaint. We’re likely veering into criminal law territory here.

The women alleged that they complained to HR, but HR took no action though it promised, allegedly, to investigate the women’s claims.

Airline, Airplane, B-747, Plane Aircraft

A Policy Without Procedures Is Like Peanut Butter Without Jelly

Or whatever you can’t have without something else. Employers, HR, you must take action and investigate.

Reading about this lawsuit against JetBlue reminded me of the lawsuit filed by the Equal Employment Opportunity Commission (“EEOC“) against United Airlines.

Remember? Back in August 2018, I told you here about the lawsuit filed in Texas federal court alleging that officials refused to take action against a male pilot who had been sexually harassing a female flight attendant for years.

I told you that although the female flight attendant complained to management and Human Resources, but, according to the lawsuit suit:

  • The woman complained to her superiors, the company’s human resources department, and United’s general counsel on several occasions over several years.
  • Officials declined to take action. In one instance, the woman was allegedly told that the pilot’s conduct did not constitute sexual harassment in the workplace and did “not warrant intervention or action by the employer.”

This, right here, is where employers run into trouble.

I told you that the best drafted, airtight, protective anti-harassment policies in your workplace are no good at all if you do not follow your procedures and enforce them.

HR Is a Company’s First Line of defense. But Not If It Fails To Take Action.

How can an employer take action?

From a high level, as I told you in Sexual Harassment Prevention 101, employers must:

  1. Provide a written procedure for reporting and thoroughly investigating claims of unlawful harassment and follow the procedure, extensively documenting the process along the way.
  2. If you are investigating misconduct, continue to follow up with the individual who reported the harassment—whether you found that it occurred or not—to ensure they feel safe and that they are not being retaliated against; again, document all findings.
  3. Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Once your company is aware that sexual harassment likely occurred, you are complicit if you fail to take investigate and/or take corrective action. Have clear standards for what type of conduct merits discipline and the types of discipline and enforce it—hold people accountable for misconduct.
  4. Provide regular, interactive, professional training to employees and managers tailored to your workplace so that they can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) A “one size fits all” approach to training is generally ineffective. Further, training must be promoted by senior leaders to show commitment.
  5. Encourage reporting of any unlawful harassment by men and women—a “say something if you see something” mentality; convey, via your policies and practices, that your company prohibits retaliation.
  6. Clarify for your employees that if an employee reports sexual harassment or discrimination, she will not suffer retaliation. This encourages reporting, which is beneficial for your company’s workplace morale, attrition levels, and reputation; and
  7. Critically, maintain a “top-down” culture prohibiting unlawful harassment. When anti-discrimination and a refusal to tolerate harassment comes from the very top of your organization, it demonstrates commitment to employees from the C-Suite to the mailroom to maintain a culture of respect for all. It says, “we’re serious here” and, likely, a workplace with an organizational culture that results in less harassment.

On a more granular, daily-basis level, when management and/or HR receives a complaint alleging sexual (or other) harassment or discrimination (or G-d forbid, rape as in this JetBlue suit), the U.S. Chamber of Commerce has some solid concrete advice here for HR:

  • Take all complaints seriously. The definition of what constitutes a formal complaint isn’t the most cut and dry. Regardless of whether a complaint is made formally or informally, it should be considered seriously.
  • Ensure pre-investigation workplace comfort. Implement any necessary changes to make sure the complaining employee (complainant) is comfortable in the workplace. You may have to remove the potential offender.
  • Inform both parties of next steps. The complainant and alleged harasser must be made aware of the steps the company will take.
  • Start the investigation ASAP. As soon as practicable, an investigation should be performed thoroughly and in an unbiased manner.
  • Come to a conclusion. After all parties are interviewed and documents are reviewed, make an unbiased determination based on the facts. The decision should include next steps (e.g., termination of the alleged harasser, training, or a determination that no harassment occurred).
  • Communicate the results to both parties. The complainant and alleged harasser should be informed of the determination.
  • Ensure post-investigation workplace comfort. If harassment was found to have occurred, ensure that the complainant is comfortable at work and that the rest of the workplace is free from harassment.
  • Follow up. Talk to the complainant at different times to ensure (s)he is comfortable at work and that the harassment has ended.

And, of course, DOCUMENT this process along the way. I cannot begin to stress this enough.

I don’t know how the JetBlue suit will shake down, but I do know that as employers and human resources professionals, employers must follow procedures and engage in the process to stem the continuous tide of sexual harassment.



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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.