ralfp

Really? Is this law/precedent? (Not rhetorical questions). Even if it is, can an employer meet the legal burden without going through some procedure to evaluate the complaint and attempt corrective action?

For most business travel there is an alternative (teleconferencing instead of meetings, driving or train for shorter distances, private jets for larger groups, etc. etc.).Wouldn't the employer be required to consider such alternatives?

pbjag

Since TS&S is getting so much traffic today, just bumping this thread to be sure some of the new visitors to this forum have the opportunity to ponder/contribute to this discussion.

Ellie M

Another thing to keep in mind here is that most, probably all, states have their own sexual harassment laws and those laws may increase the burden on employers in those states beyond what is required under federal Title VII.

stifle

I'm taking up a role with a London-based company in a few weeks and fully intend to file a harassment grievance the very moment I am required to go through a NoS on a business trip.

RichardKenner

Some of them, sure, that's what "reasonable accomodation" means. I doubt a private jet would ever be considered "reasonable", though. But many business have been using teleconferencing instead of meetings for years to lower costs, so much of that has already been done.

The hardest case of business travel are salespeople. There's just no good alternative to "pressing the flesh" when trying to make a sale, especially in a business-to-business context. You can have as many webinars, email presentations, and teleconferences as you want, but many deals just aren't going to close unless there's personal contact. Sure, a salesperson can use trains or drive for some visits, but again, that would already have been done (to save costs) if it were practical. If a salesperson can only visit 1/3 or 1/2 of the number of people he could previously due to not flying, that person's productivity (and commissions!) is likely to go down by that same factor. It's not "reasonable" to require an employer to retain such a person.

Another way of saying it is this: air travel is the most expensive mode of travel. In the present economic climate, most company are very agressively cutting costs. They will have already used much of above methods to eliminate as much travel as reasonably possible irrespective of the TSA changes. That just leaves travel that it's not reasonable to eliminate.

Dovster

You are accepting a position which requires you to fly and intend to file an harassment agreement when you are subjected to the TSA's inspection?

That is like a woman who accepts a position as a hooker and sues her pimp because a john wanted to have sex with her.

stifle

Occasional business travel. No TSA; I'm not in the US. And my company will have an easy alternative: any airport other than LHR or MAN, or surface travel for many destinations.

But even if I was in the US, knew I'd be flying weekly, and had no NoS-free airport within a day's drive, I would still do exactly the same. It's just another lever against this absurd situation where people are expected to comply with nude images being made of them (or the alternative intense personal search, where available), seen and possibly recorded by persons unknown, with the threat of being refused boarding (and in all probability several negative interactions with LEOs) if denied.

RichardKenner

No, because the type of inspection has changed since the person has accepted their job: that's the key here.

Clearly, an employer has the moral responsibility (whether required by law or not) to evaluate, investigate and attempt to correct (if necessary and reasonable) any complaint brought by an employee about working conditions or the work environment.

It's a fundamental principle of the law that there's a limit to what's it's reasonable and practical to do. The best and most well established area of the law relates to accidents. An employer has an obligation to provide a safe workplace. But if an accident happens, the employer isn't liable for damages unless it can be proven that there's some reasonable action the employer could have taken to prevent that accident and that the employer didn't take that action.

ralfp

It's not just about the person making the complaint, is it? (not a rhetorical question) If one or more employees makes a complaint about a supervisor (for example), wouldn't one have to assume that all subordinates might be subject to the same hostile work environment? Similarly, once one or more employees have complained about the TSA screening process, wouldn't one be obliged to assume that every one of your employees might consider it a sexually hostile work environment?

Regarding salespeople: what if a potential customer was known (based on complaints from your employees) to create a sexually hostile work environment to people of either sex?

It seems like a similar situation: the only choice is between not going to the potential customer's site (giving up the sale) and putting your employee into the offending environment. For a business with thousands of potential customers the situation might not be too difficult, but what if your potential client base consists of just a few companies?

neko

But sexual harassment isn't an accident. If an employee makes a substantiated complaint of sexual harassment, the employer is required to address it.

There is also an EEOC issue related to 'disparate impact', that is, a nominally gender-neutral employment policy that in practice affects men and women unequally. If female employees are disproportionately likely to report sexual harassment in connection with employer-required travel* and are thus disproportionately fired or otherwise professionally penalized for refusing to travel, then the employer may be at risk of violating not only anti-harassment, but also anti-discrimination rules.

(*) I personally believe that it is offensive to both genders, but there are reports suggesting that young women have been singled out. Same for racial or ethnic minorities.

RichardKenner

Maybe. I'm not sure I completely accept the analogy, though, because in the first case you have something unique in your company (the accused supervisor) that makes you different than other companies and in the latter you don't (any employee that travels for any company is treated the same way when flying).

Again, a different case because it's not a matter of one company that you can't travel to but the majority of them (assuming a job that requires a lot of air travel).

But the sort of situation you cite is tricky. Let's suppose you're a company that has exactly two customers. You find that one of them is sexually harassing your salespeople. You tell them to stop. They refuse. Now what? If you're legally responsible for their actions, you're out of business whatever you do: if you do nothing, you're sued and the judgement puts you out of business, but if you take action and cut off the customer, you've lost half your business and will presumably be out of business as well.

That would put you in the situation where, once something that you have no control over (e.g., the harassment by a customer) happens, whatever you do, you're out of business. I find it hard to believe that the law would create that situation.

rzsionak

The state issue will vary state to state as to how they interpret the situation and set precedence. e.g. CA and HI are very employee friendly and would put a lot of burden on employer to justify termination of an employee for unwillingness to fly under the current situation.

ralfp

What I was saying is that if one or more employees complain about something/someone as having committed sexual harassment or created a sexually hostile work environment, isn't it logical (is it legally required?) to assume that all other employees subject to the same conditions may be subject to the same harassment/hostile environment?

i.e. if one or more employees claim that the TSA creates a sexually hostile work environment, must one assume that all employees who fly are subject to the same conditions?

Somehow I doubt that the fact that other employers' employees are also subject to the same hostile work environment excuses one's own hostile work environment.

amps

Is this thread dead??

A couple of questions!

Should you as an employee have a discussion about this with your employer up front? I know there are a lot of opinions in this thread but is there anybody (not a friend of a friend) that has dealt with this directly with their employer? Are there any lawyers in the house to comment? As an employee I feel that I'm caught between a rock and hard place.

Thanks.

Loren Pechtel

This sounds like a career-ending move to me.