Thursday, October 7, 2010

The Not-So-Friendly Skies

A female Executive Jet employee complained about inappropriate behavior ("lewd," "raunchy," "sexualized banter," "pornographic emails," and at least one pinching incident) by male employees, which turned out to be (a) fabricated to a large degree (b) motivated by her desire for a transfer, and (c) a complaint about behavior she herself often initiated.

The airline investigated, discovered the misconduct was widespread among employees of both genders and - perhaps feeling it needed to do something - fired the male employees.

The men promptly filed a claim of gender discrimination with the EEOC, and later in court, alleging they were fired for behavior female employees engaged in with impunity.

The lower court dismissed the case, finding the female employees were not "similarly situated" (that is, comparing the male employees to the female employees was like comparing apples to oranges), because they had different supervisors.

The Ninth Circuit rejected that reasoning (pointing out the termination decision was made by the president of the company, not by one of the two supervisors), but accepted the district court's other basis for dismissing the case: No one complained about the female employees' behavior.

Anyone care to comment?


  1. "No one complained" seems to me to be a reasonable basis for the circuit court decision. I've worked on several workplace policies over the years, and the line between flirtatious and egregious behaviors was some kind of harm: either hostile work environment or granting/withholding of advantages. If no harm is evident, then the comparison of behaviors is strictly theoretical.

    However, Executive Jet must keep an eye on the situation, because a company culture in which some women flirt with apparent impunity simply because the men like it, could presumably degrade into the kind of scene where others (both men and women) could eventually find the work environment "hostile" or at least degrading! Maybe the key is a trustworthy grievance process.

  2. I agree wholeheartedly that a complaint procedure is key! Even with a solid complaint procedure, it can be very difficult to parse between inappropriate-but-innocuous and harassment, when everyone appears to be enjoying the banter. How do you tell when someone is participating just because she wants to blend in and get along? On the other hand, from a purely objective standpoint, there is a problem with the court's decision: the male employees acted inappropriately, violated known company policies, and were fired; the female employees acted inappropriately, violated known company policies, and suffered no consequences. Of course, the company risked a retaliation lawsuit if it imposed equal discipline, because one of the policy-violators was the employee who later complained. It's a tough situation no matter how you slice it!