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Should Employers Be Liable For Third Party Harassment By An Employee On A Plane?

On a recent flight between Newark and Buffalo, Katie Campos was grabbed in the crotch area by an intoxicated fellow passenger, despite her demands that he stop. Campos left her seat and told a flight attendant, as did another female seated in the same row, who reported the same behavior to the United Airlines crew.

Campos said she was re-seated, but directly behind the harasser who continued to harass and touch her. Local law enforcement met the plane when it landed and removed the man. Campos commented that she felt the crew handled the matter inadequately and worried as to what the outcome would have been if the flight had been longer.

Flight attendant organizations report about 2,000 mid-air sexual assaults last year, but law enforcement met the plane less than half the time, and the employers have not told flight attendants what to do in these situations. One 22-year United Airlines veteran flight attendant, currently president of the union, commented that she has never taken part in any conversation or training about how to manage sexual harassment or sexual assault mid-air.  

One Delta passenger, who left her seat to report being grabbed in the crotch, was re-seated away from the harasser, but law enforcement was not called. Instead, the airline offered her 10,000 frequent flyer miles. This passenger told CNN, "If somebody reports a crime to an airline, it should be flagged. It should not be treated as if it's lost luggage."

Another Delta passenger, groped by a Platinum flyer, has sued the airline for failing to intervene and continuing to serve the intoxicated man alcohol because of his frequent flyer status. Rene Marsh and Juana Summers "Women detail sexual assaults and harassment on commercial flights" (Dec. 28, 2017).

So, the question for our readers is: should employers be liable for third party harassment by an employee on a plane?

Please let us know what you think in the comment section or take the poll. Here are some opinions of some of the McCalmon editorial staff:

Jack McCalmon, Esq.

Liability for sexual harassment would not end because a harassing employee and his or her target is on an airplane, so long as federal or state authority exits where they are flying. The question is whether the accused employee is working within the scope of his or her employment. If an employee is going to a destination for business or returning from a business destination, an argument exists that he or she is acting as an agent of the employer.

Defenses do exist for the employer, including an assault of a complete stranger outside the scope of employment; a violation of a general prohibition of wrongdoing policy; and, if intoxicated, that the employee violated a policy for abusing alcohol on the job. Another defense is that the target and the employee were not in a working environment and that the limited time on the plane did not allow for severe or pervasive treatment, although grabbing someone's private parts most likely meets any severity test. 

An interesting theory is that if the airline was continuing to provide drinks to an intoxicated employee that the airline shares responsibility for any charge of harassment. Another theory is, based on the federal transportation regulations, that the moment an employee steps on a plane, he or she is the responsibility of the airline and not the employer.

For employers, it is important to make certain that employees understand and acknowledge that your policies extend to travel within the scope of employment.  

Kirstin Heffner, Esq.

Airlines have a duty to provide for the physical safety of their passengers and protecting them from sexual assault should fall under this duty. The choice to serve alcohol along with the fact that many minors fly without adult supervision further complicates this duty. If airlines do not address the issue, they should.

As employers, airlines should have policies in place to protect their employees from sexual harassment and assault by third parties, including passengers. Procedures for flight attendants might include asking for assistance from a fellow crewmember or even other passengers, if necessary. Reporting is essential to any harassment policy and offending passengers should be reported to law enforcement and internally to prevent future harassment of employees or passengers.

You can provide a comment on what you would do or answer our poll. Please note any comments provided may be shared with others.  

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