Boggie Dog

I think the difference, or at least the main difference between now and last year is how the Strip Search Machines are being used.

TSA indicated the intent was to use the Strip Search Machines for secondary screening in order to clear alarms. Then after the Christmas Day event of 2009 TSA shifted position and decided to make the Strip Search Machines the primary screening device.

Employees who have to travel should be filing complaints with their employer and with the TSA each and every time they are felt up or electronically stripped search.

pbjag

True. And the other difference is the OP for this thread is a business owner now understanding the potential liability ramifications. ^ We need more employers to connect these dots and protest to Congress.

RichardKenner

I am a business owner (really, co-owner) who has lots of employees that travel, but I don't agree about the liability issue. In the classical sexual harassment situation, you have one of two things:

(1) One or more employees in a position of power within a company are receiving, or trying to receive, sexual favors from employees below them.

(2) The company is creating a sexually-offensive atmosphere.

I don't see how either can be argued here. The people who are getting to see or "grope" folks are not employees of the company (so #1 doesn't apply) and the people creating the environment aren't employees of the company either (so #2 doesn't apply). In light of that, saying "by forcing employees to travel you are potentially subjecting them to what might be considered sexual harassment" doesn't seem to be enough, especially since that can be applied to any company.

Boggie Dog

But would a jury think the same way you do?

El Cochinito

Maybe, maybe not. But IMHO the bigger issue for you as a business owner is this - are you prepared to defend yourself against a harassment lawsuit? Even if there is no merit you'll likely still need to lawyer up.

RichardKenner

It doesn't matter: these are issues of law, not facts, and would be ruled on by a judge, not a jury.

Every business owner has to be prepared to defend against lawsuits that have no merit. In some cases, this leads to companies not wanting to do things (such as doctors not wanting to be in the OB/Gyn business), but normally these sorts of things are just the cost of doing business.

Global_Hi_Flyer

Given a couple of rulings I've seen, I think it plausible that there could be a finding of hostile environment as it relates to employees that must travel. And if you give them a choice of traveling or being terminated, I also think it plausible that some states you'd find courts receptive to an argument that it's unwarranted termination (at-will states will probably not be an issue, others may be).

rzsionak

I agree that this is not sexual harassment, however what I'm looking at is whether I'm subjecting employees to a hostile work environment by requiring they travel by commercial air. As other posters have noted, the changes came hard and fast. Asking employees to walk through a metal detector and take off their shoes is different than asking them to be sexually assaulted at work.

My concerns are if an employee complains about being subjected to such treatment at work, what accomodations do I have to make. I look at this by the law of averages perspective that while many will begrudginly accept the treatment, a percentage will not and I will have to handle those situations.

belynch

To go back to the OP's original question -- I think most employers could absolve themselves of liability by stating they did not force an employee to take commercial air travel.

They simply said get from point A to point B.

Just playing devils advocate.

MrAndy1369

How about for international travel?

neko

I think a relevant comparison would be a situation in which an employee is subject to sexual harassment in connection with her job duties by a person who is not also an employee (or contractor or otherwise under the control of) that company and away from company premises.

For example, a female sales engineer is subjected to inappropriate touching during a visit to a customer site (i.e. by an employee of the customer company).

Surely she would have a valid basis for a sexual harassment complaint if her employer required her to return to the customer site without taking appropriate measures to ensure her safety ('grin and let him grope you - it's for the good of the 3Q sales numbers').

The point is, there must be existing case law addressing this, even pre-TSA.

RichardKenner

A sexually-hostile work environment is a type of sexual harassment.

I think that's a very different question than having to worry about some employee suing without any previous discussions on the matter.

From the perspective of my company, I don't see this as a legal issue. If there's anything that an employee is uncomfortable with, we'll deal wit it whether legally required to or not. But in more general cases of companies that do as little for their employees as legally possible, there could be a question of what to do.

But I think the point that it's not your environment is key. Let's look at an analogy. Suppose you were a manager at UPS and one of your delivery workers had a route that included a strip club. Whenever she went into that club to deliver packages, she encountered pictures of nude women and she came to you complaining that delivering to that location created a sexually-hostile work environment. What would you do? You could reassign her to a different route, of course, but let's take the hypothetical situation where every route had one such club in it? Then what would you do?

I see this as similar to a ADA issue: if a worker is so disabled that there's no practical way to accomodate them doing their job, there's no requirement that that worker be retained. If, through no fault of yours, an employee feels they're unable to travel (either because of screening issues or, for another example, a fear of flying), I think there's a limit to how much you're required to do to accomodate that person: if you have a job that requires air travel and, for whatever reason, an employee can't travel by air, then they can't do that job. I think the result would be very different if you were creating the environment.

I don't see that when the company has no way to affect the environment in question. Can you point to a case that suggests otherwise?

neko

I expect that for anything other than short distance travel, an employer would not give approval to other than commercial air travel, i.e. if an employee submitted some kind of travel approval form (I think most companies have something like this) showing them spending three days driving from Seattle to Houston or using an air taxi service..

That is, I don't think it would be hard to show that the employer did, in fact, require the employee to use commercial air travel.

Global_Hi_Flyer

The company could affect the environment. Providing a corporate jet is one example.

belynch

Steam ship.

I can only speak based on my experience with my employer (a multi-national multi-billion dollar company with tens of thousands of employees). The employee handbook section regarding company travel makes no mention of forcing an employee to take a specific mode of transportation. Although I think the word "reasonable" is used a solid 09823408234089250832 times.

I think if I were to contact my employer and say that I felt the "enhanced" security procedures at commercial airports constituted harassment they would have to make a reasonable accommodation for my request to not be subjected to what I considered to be harassment / hostile work environment.

Could they make reasonable accommodations? That's of course a huge hypothetical. I'm simply raising this point as a way an employer would attempt to absolve their liability.

Unless you clearly stated "commercial aviation in the US subjects me to harassment, please don't force me to continue with this" and then they forced you to continue traveling via commercial US aviation would you have a valid claim against your employer.

I'm not a lawyer. I'm also not looking to be fired.