Dovster

Would a pilot be allowed to keep his job if he refused to go through TSA checkposts? How about an FA?

If not, why should a tech rep whose job requires long distance travel be allowed to keep his job when he refuses to fly? Or a salesman with a wide spread territory?

How about the Vice President for International Marketing? Can he refuse to get on the plane to Paris or Rome?

I could see where a secretary who is never required to go anywhere, and is suddenly told that she has to make a 2000 mile trip, getting away with refusing but not someone whose job entails travel.

Keep in mind that it is not the employer who is demanding these screenings but rather the government. If the courts ever decide that the screenings are illegal sexual harrassment, they will be stopped. If the courts do not hold that, then it would be difficult for an employee to make the claim.

DoingHomework

Perhaps those perverts will do the honorable thing and stand up for what is right. If they were told to shoot every third passenger they would object. They are being told to invade the privacy of every Nth passenger. They should recognize it is wrong and refuse. In my opinion, those TSA officers that are not personally humiliated at having to grope someone ARE perverts!

InkUnderNails

I would suggest that if they were told to shoot every third passenger that there would be volunteers that would do it, if it was to keep us safe.

RichardKenner

"Address it", sure, nobody's claimed otherwise. But "address it" doesn't mean "be able to do anything about it". The accident analogy is relevant because both are out of control of the employer: accidents happen despite an employer's best efforts and the employer has no control over TSA screening procedure. There's no way that the law can require somebody to do something that's impossible: a job that requires air travel usually can't be changed into one that doesn't (as I said, given the cost of air travel, if that were practical, the employer would already have done it) and there's nothing the employer can do to prevent the complained-about behavior.

We're going around in circles on this, but you can't get around the fact that the law can't require somebody to do something that they can't do.

I think it's really pushing it to call requiring travel an "employment policy", whether the impact is disproportionate across genders or not.

I think that's the best way to put it. If a court should hold that the screenings are sexual harrassment, then they'd order them stopped. The question of whether individual employers should have somehow taken some action to have them stopped is then moot. And if the court should rule that they are not sexual harassment, then employers can't be held liable. Either way, I don't see how this can be made an employer/employee issue.

If you, as an employee, have a problem with anything your employer asks you to do, I think it's reasonable to have a discussion with your employer about it. How far you want to push it depends on how strongly you have a problem and what your alternate employment options might be.

ralfp

Really? The case of salespeople, as you described below, would seem to be an example of an "employment policy" (although you did not use those exact words).

Why not? Is there some fundamental right that a business may not be subject to laws that it cannot follow? I'm not saying that it's right or wrong to have such laws, but I would imagine that many companies have gone out of business because of laws that they cannot follow (e.g. following the law would drive them to bankruptcy).

I was under the impression that filing a grievance/complaint regarding sexual harassment, etc. was something that is protected by law (firing someone for making such a complaint would be illegal retaliation). Am I mistaken? Of course, in reality, an employer could always find some other "reason" to terminate an employee.

Yes, the post you quoted was by a UK-based employee; the UK may have different laws regarding this kind of thing.

Loren Pechtel

The thing is he's planning to take a job knowing he's setting himself up for what he considers sexual harassment and then plans a gripe about it.

What employer would want someone who would pull something like that?

mahohmei

A few thoughts here:

- I live in Tallahassee, where _the_ major employer is the State of Florida and its spin-offs. For employees based in Tallahassee, work travel as far as Orlando is done by mile reimbursement or rental car. South of Orlando, it's by commercial airline--state-owned aircraft for time-critical emergencies only. My wife just got sent to PBI, and got away with just the WTMD.

I once met some people working for a company with about 30 employees. They actually used Greyhound for business travel. And to that, I say: why not? I've used it before, and it's not the "bus full of smelly obese ex-cons" depicted by Hollywood, and one might joke that bus carriers probably love the direction the TSA is going. The Tallahassee Greyhound terminal is in not only downtown, but within 100 yards of a Hertz location.

Oh, and we have two other regional bus carriers here (RedCoach and TMT), and RedCoach uses wide business-class seats (2-1 configuration instead of 2-2).

- Just as a humorous offshoot to hostile work environment, a former coworker of mine once went through training to be a cable TV installer. Actual rule: if their work requires entering the customer's house and the customer is not dressed appropriately, they are to refuse to enter the house.

RichardKenner

I'm not sure I'd call it a "right", just a basic principle of law. How can you force somebody to do something that they can't do?

I don't think that was the point. The point isn't in the filing of a complaint. If you have a job that requires travel and you say "I no longer feel able to travel", you have a real risk of losing your jon and it's not because of the complaint but because you are refusing to do a required part of that job.

ralfp

No sensible employer, that's for sure.

However, from a legal standpoint, does the preexisting & ongoing nature of the activity considered to be sexual harassment by the potential (and perhaps future) employee excuse anything?

For example, let's say one applies for a job as a salesperson at a company known to send its salespeople to interact with several clients that grope salespeople and engage in other sexually hostile activities. Let's say that no current employees have filed any complaint about the activity, and that one knows about both the conditions and lack of complaints before applying for the job and then gets the job. Do those facts protect the employer in any way once the new employee makes a complaint about the sexually hostile work environment?

The questions above are not rhetorical, though I suspect that the answer to both questions is "no" (I am not saying that a complaint about the NoS & grope would be upheld).

Sure, laws more powerful than those of any government preclude forcing someone to do something that they cannot do. However, AFAIK, one can be forced to pay for failing to do something that one cannot do. A business can be fined for failure to follow regulations with which it cannot comply. Businesses, unlike people, can be de facto forced to go bankrupt.

Let's say I run a consistently profitable company with $20 million total assets that gets all $10million of its annual revenue from activity X. A new regulation requires that anyone engaging in activity X buy equipment or otherwise incur costs of $1billion. What can I do?

The post in question:

I would imagine that the employee would have to at least begin one trip and be exposed to the activity in question (n.b. IANAL); if the employee just refuses to travel from the get go then he/she is hosed. Could one file a grievance simply based on knowledge of the checkpoint procedures?

What happens if the employer gets a complaint immediately after the employee's first trip through a checkpoint and then continues to require that the employee expose him/herself to the sexually hostile work environment (travel) before the complaint is investigated and investigations are concluded? Does this expose the employer to potential liability?

Dovster

In my very unschooled legal opinion, that salesperson would be in the same position as a hooker.

If a woman takes a job (in a jurisdiction where it is legal) as a prostitute she is in no position to claim that she is being sexually harrassed because clients want to have sex with her.

ralfp

AFAIK, an existing practice of sexual harassment does not make an ongoing harassment legally permissible, with the exception of things directly tied to the work (the example was salespeople as employees and clients as the perpetrators). I doubt that an employer's claim of "That client always fondled my salespeople, so I ignored the new employee's complaint about the fondling." is a valid excuse for ignoring a complaint.

Here's where I am confused. Obviously sex is an inherent part of a prostitute's job... sorry, position... sorry, employment. Is your analogy a particularly pungent kipper, a statement that being felt-up is an inherent part of a traveling salesperson's job, or something else?

Are things are so bad that being felt-up (a large percentage of people who do not opt-out are still subjected to unwanted touching) and occasionally forced to disrobe is as inherent a part of a traveling salesperson's job as sex is to a whore's job? That being felt-up is an inherent part of the job for salespeople with certain medical implants? Seriously?

RichardKenner

I would say "yes". It's like the stripper pole distributor example I gave a while ago. A person couldn't take a sales job knowing that they'd be expected to visit strip clubs and then later claim they were being sexually harassed by being forced to do so.

Regulations like that are both very tricky and very rare, precisely because of such problems. Recall that Prohibition required a Constitutional amendment. Certainly, you can have a situation where a company that produced a certain chemical is forced out of business if that chemical is found dangerous and outlawed, but that's very different from interpreting general rule (e.g., ADA, discrimination, or sexual harassment) in a way that would produce that result.

Theoretically, perhaps, but the "investigation" is going to take zero time: a very rapid determination that there's no way the company can affect what happens at the checkpoint.

No, but as I've repeatedly said, there's a very big difference between a situation involving one (or a small number) of customers and some more generic issue. Here, somebody is claiming that travel itself is sexual harassment through no fault of the employer. In other words that it's an inherent part of the job. So if somebody today accepted a job requiring travel, I don't think they could later claim sexual harassment. In that way, it's similar to the prostitute.

Obviously, there's an ongoing debate about whether that's the case or not. But here we're assuming that it is.

neko

It would be more useful for people with concerns to actually talk with appropriate specialists than play IANAL and RUAL? games.

The contact info for the EEOC lists both general contact info and by-city contact info for small businesses.

If you're a manager, you can also contact your HR people and ask them whether there could be a problem if you ask an employee to travel and s/he experiences an invasive patdown.

If you're a small business owner and belong to some local or national organization, it might also make sense to get in touch with them and see whether it makes sense to try to get a formal opinion from a specialist.

RichardKenner

Why? What would a small business owner do with the resulting information? They can't change the screening process and have likely already cut back non-essential travel for financial reasons. Why pay for information that can't possibly effect what they do and is really nothing more than a guess anyway?

The view from people I talk to about this is "who knows for sure if this is an issue or not, but there's nothing I can do about it, so why waste time worrying about it, especially when there are lots of things I can do something about that I need to spend my time on?".

Loren Pechtel

Note that I didn't say he was wrong to call it sexual harassment. I was only talking about the career implications.