By: Amy Epstein Gluck

People: the best drafted, airtight, protective anti-harassment policies in your workplace are no good at all if you do not enforce them.

It is simply insufficient to profess that you do not tolerate sexual harassment.

When an alleged victim of sexual harassment complains to you (“you,” as in the employer, the supervisor, the Human Resources manager), whether by filing a formal complaint or informally, FOLLOW YOUR POLICY.

You have one, right?

It says you will not tolerate sexual harassment, racial harassment, or harassment based on any protected class in accordance with Title VII of the Civil Rights Act of 1964 (“Title VII”).

Your detailed policy explains sexual (and other unlawful) harassment and provides examples of unlawful harassment detailing the various types for illustration and explication.

And, of course, your policy has specific complaint, investigation, corrective action, and no retaliation procedures, right?

I am SURE that your policy explains that your company will not tolerate unlawful harassment and that you will fully and promptly investigate any and all complaints, whether or not you know if they rise to the level of “severe” or pervasive” in order to constitute a hostile work environment or quid pro quo harassment.

Lawsuit against United

According to WaPo and other publications, United Airlines (“United”) found this out the hard way, but their plight is not as uncommon as you might think.

I’ll explain.

The Equal Employment Opportunity Commission (“EEOC”) sued United last week 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.

According to the complaint, the pilot had compromising photos of the flight attendant from a personal relationship with her. And then posted them online. Nice. Classy.

(Yes, yes, of course she should not have allowed him to take these photos. This post is not that, though that is certainly and absolutely true.)

The complaint alleges that the flight attendant broke off the relationship when the pilot refused to stop posting them, and then he continued to post photos of her on pornographic websites complete with her name, occupation, home airport, and the following instructions:

“Look for her when you fly!”

So people did. A lot of people. Several colleagues of the victim saw the photos too, according to the complaint.

The victim filed several lawsuits over the years and obtained monetary and injunctive relief (i.e., a court order requiring him to stop posting), but he wouldn’t stop. Finally, the FBI became involved, and this lovely man was convicted of internet stalking. Good.

Why is this an employment issue?

But wait, wait, wait.

What about when this pilot, an employee at United, first started posting the photos. Didn’t the victim tell HR or a supervisor? After all, we know that HR is a company’s first line of defense.

She did. The complaint alleges that of course she complained to management. And HR. However, United did not consider the pilot’s actions to be a problem. For those who have long asked me, “Why don’t women report sexual harassment?” — this may help you understand.

In fact, according to the EEOC’s 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.

Whether or not the pilot’s conduct constituted sexual harassment is one thing, but the allegation that posting did not warrant the employer’s “intervention or action” is where we want to pause for a moment.

Additionally,

  • According to the complaint, the pilot had supervisory authority over flight attendants.
  • The pilot’s supervisor provided a letter of reference indicating that he (the pilot) had no issues that “required discipline, counseling or extra training.”
  • And, here’s the kicker, after the FBI had arrested the pilot, United granted him long-term disability, continued to pay him, and continued to provide his benefits. THEN, after he pleaded guilty to federal stalking charges, the company allowed him to retire with full benefits, according to court documents.

Yes, let’s essentially reward someone for being convicted of internet stalking and posting nude photos of one of your employees all over the internet and after a court issued a permanent injunction ordering said employee to stop doing this.

Policies are not enough

Folks, this is why policies are not enough. The above allegations, if proven, may explain to some who question why women do not report and/or have not always reported sexual harassment.

Also, if management allows the harasser, convicted on charges of stalking the colleague he is harassing, to retire with full benefits after granting him leave with pay and benefits after his arrest, what does that tell other employees victimized by sexual harassment?

It says, contrary to the mantra espoused by me, and my partner Rich Cohen here, that senior leaders and management tolerate sexual harassment and don’t follow the company’s policies.

It very well may green-light this type of behavior.

Employer Takeaways

Do not find yourself a defendant is such a lawsuit. We hope you won’t, and we are here to help.

  • Have your clear, no-tolerance anti-harassment policy in your employee handbook, but more, ensure it is disseminated throughout your company, updated as needed, and understood by all of your employees;
  • In that same handbook, encourage and provide a written procedure for reporting, and explain that management will promptly investigate claims of unlawful harassment. Then, as we emphasized here, follow this policy, documenting the process along the way. Have clear standards for accountability and what merits discipline.
  • Provide regular, interactive training to your employees, yes, but to your supervisors and HR staff too so that they can recognize, respond to, and prevent unlawful harassment (based on sex, race, etc.). Give examples, fact-based scenarios, pop quizzes, whatever. The point is: HR and supervisors must recognize poor behavior, investigate it, and then follow the company’s own anti-harassment policies.
  • Ensure that senior leaders promote anti-harassment training and anti-discrimination/ harassment policies—shows commitment and enables people to “follow the leader,” which they usually do. The “leader” in this complaint sent a message that if the harasser is important enough, that person will be protected. This type of thinking is flying less and less in the #MeToo era (think: Weinstein).

You do not want to be the next airline or car service making these headlines. As the EEOC suit claimed, “[D]espite having employee rules of conduct, disciplinary mechanisms, applicable policies and procedures, and the authority to prevent and correct the continued unlawful conduct of [the pilot], Defendant failed or refused to take reasonably necessary actions to protect [the] Flight Attendant [Doe] from harassment.”

Then what’s the point of all of these policies and procedures?