TSA, sexual harassment, work

[royal_archer]

Given: If your boss gropes you at work you can claim sexual harassment. If your boss does nothing while others grope you, you can claim a hostile work environment.
An employee who is asked to travel as a peripheral duty in their job (not part of their primary tasks) refuses to travel because they do not want to be the victim of sexual contact or have immodest pictures taken of them. The employee is then fired, disciplined or otherwise punished for this decision. Can they sue based on a hostile work environment?

 

[Orogeny]

You can sue for anything you want, but that would be a losing case. You would be fired for refusing to do your job. Your boss didn’t put the security procedures in place, so he isn’t liable for that.

The comparison between someone groping you for sexual gratification with a pat down at the airport is ridiculous.

Peace

Tim

 

[Newbie2]

Is it a ridiculous comparison?

I think RA has a point here, although it is an imperfect comparison.

From a legal perspective…it’s interesting. Certainly there have been successful cases of perceived sexual harassment, no? And if someone must travel as part of their job, and cannot for example take a train or but to their destination, it makes an interesting argument.

However, I think that the company, as Orogeny pointed out, has certainly lessened culpability as they have no control over the screening procedures, especially if they change and get more…intrusive.

Let’s take it to the extreme and say everybody who flies gets a…body cavity search and strip search. Company A is aware of this, and informs new hires that they must fly (cannot travel by any other means) as part of their job i.e. that the new hire must endure such screening as a part of their job, even though company A does is not directly involved in the screening.

I suppose if they knew this in advance and had the employee sign off on it, they would have no legal culpability.

But…now we have a long-standing employee of Company A who does the same traveling, and the screening procedure changes from what it is now to body-cavity searches and strip searches. The company says old employee must continue to travel by plane, giving no other alternative, such as a web-based meeting online,etc. So, this employee’s work environment has changed for the worse. Is the company on the hook for not trying to find other alternatives to the employee’s travel? Hmmmm.

And further yet, take the last scenario and assume that the company has no other way for the employ to do his work…he or she MUST travel to the destination to do hands-on work, as other alternatives like a web-conference simply will not work. Would this change Company A’s culpabiltiy?

Let’s ask Prof. Kingsfield.

 

[Orogeny]

Is it a ridiculous comparison?

I think RA has a point here, although it is an imperfect comparison.

From a legal perspective…it’s interesting. Certainly there have been successful cases of perceived sexual harassment, no?

Yes, you are right. I had a co-worker get fired because a woman that worked for the company complained that she didn’t like the way he looked at her and she felt intimidated and uncomfortable. By her own admission, he didn’t touch her nor say anything to her. She just felt uncomfortable. He was fired because the company didn’t want to take a chance that she would sue.

Now, fast forward to airport security. What if an employee complained that they didn’t like how security was watching them? Would that also qualify as sexual harassment? Could an employee refuse to travel because of that?

Peace

Tim

 

[royal_archer]

The company can not control TSA activities but can control whether or not the employee travels by air.

If you do not like the “hands on” boss comparison consider a “hands on” customer. If an employee is a sales rep and the company the rep handles hires a new buyer who acts in an innappropriate manner (from the perspective of the employee), but the boss of the sales rep forces them to continue to have face to face meetings with the person who is not acting in a decent manner would you consider it to be a hostile work enviornment?

Also I was carefull to distinguish that the travel was not inherrant to the job but a peripheral function. If the person was hired specifically as an on the road sales rep or in another possition where the lack of travel would have serious impact on the performance of the basic function, that would be different than an employee who’s primary role does not involve flying but is asked to fly for a special purpose such as a meeting.

I also do not believe that someone hired after these procedures are put in place for a job whose description includes air travel.

 

[royal_archer]

Yes, you are right. I had a co-worker get fired because a woman that worked for the company complained that she didn’t like the way he looked at her and she felt intimidated and uncomfortable. By her own admission, he didn’t touch her nor say anything to her. She just felt uncomfortable. He was fired because the company didn’t want to take a chance that she would sue.

Now, fast forward to airport security. What if an employee complained that they didn’t like how security was watching them? Would that also qualify as sexual harassment? Could an employee refuse to travel because of that?

Peace

Tim

The difference I see with the staring TSA agent is that the groping is a likely and expected probability inherent and foreseeable in air travel. A TSA agent staring even in the most creepy, stalking, or harasing manner would be an issolated incident that would be unforseeable by the company. An employee would not be able to say there was a reasonable likelyhood that they would be harrassed via staring on the next trip to the airport.

 

[Orogeny]

The difference I see with the staring TSA agent is that the groping is a likely and expected probability inherent and foreseeable in air travel. A TSA agent staring even in the most creepy, stalking, or harasing manner would be an issolated incident that would be unforseeable by the company. An employee would not be able to say there was a reasonable likelyhood that they would be harrassed via staring on the next trip to the airport.

What if you have an employee that is sensitive to being watched? There is a very reasonable probability that they are goinig to be watched and, if they equate that with sexual harassment, be sexually harassed. Does that person, for whom travel is only a peripheral function of their job, have the right to refuse on the grounds of sexual harassment? If they are disciplined or fired, do they have a case for sexual harassment?

Peace

Tim

 

[Orogeny]

The company can not control TSA activities but can control whether or not the employee travels by air.

If you do not like the “hands on” boss comparison consider a “hands on” customer. If an employee is a sales rep and the company the rep handles hires a new buyer who acts in an innappropriate manner (from the perspective of the employee), but the boss of the sales rep forces them to continue to have face to face meetings with the person who is not acting in a decent manner would you consider it to be a hostile work enviornment?

You mean like looking at them?

Also I was carefull to distinguish that the travel was not inherrant to the job but a peripheral function. If the person was hired specifically as an on the road sales rep or in another possition where the lack of travel would have serious impact on the performance of the basic function, that would be different than an employee who’s primary role does not involve flying but is asked to fly for a special purpose such as a meeting.

Why sexual harassment? Why not argue that travel is not part of the job so refusal to travel does not equate refusal to work?

Peace

Tim

 

[royal_archer]

What if you have an employee that is sensitive to being watched? There is a very reasonable probability that they are goinig to be watched and, if they equate that with sexual harassment, be sexually harassed. Does that person, for whom travel is only a peripheral function of their job, have the right to refuse on the grounds of sexual harassment? If they are disciplined or fired, do they have a case for sexual harassment?

Peace

Tim

How is the likelihood of them being watched at the airport any different than any other public place?

 

[royal_archer]

You mean like looking at them?

Like touching them between the legs or on the chest.

Why sexual harassment? Why not argue that travel is not part of the job so refusal to travel does not equate refusal to work?

Peace

Tim

Because the only thing that has changed is the additional ellement of the touching and imaging of of sexual organs or parts of the body associated with sexual activities.

 

[Orogeny]

How is the likelihood of them being watched at the airport any different than any other public place?

I don’t know that there is. That doesn’t stop the accusation, though, does it? That is why I think your suggestion that they would have a case for sexual harassment is wrong.

Peace

Tim

 

[Orogeny]

Because the only thing that has changed is the additional ellement of the touching and imaging of of sexual organs or parts of the body associated with sexual activities.

No, the change is the requirment to travel. What if the person was afraid to fly and was fired for that? The only difference is that the person refused to travel because of a phobia and the other because they didn’t want to go through security.

If a person is stopped by the police and they have reasonable cause to search you for a weapon, does the contact they make with your genitals equate to sexual harassment? Is that groping?

Peace

Tim

 

[royal_archer]

I don’t know that there is. That doesn’t stop the accusation, though, does it? That is why I think your suggestion that they would have a case for sexual harassment is wrong.

Peace

Tim

your argument does not make sense on three accounts:
-fondling is a much more intrusive than watching
-watching is not inherent to airports and the company would not be exposing them to a worse condition (re-watching) than they would experience at any other location.
-The demand to use air travel nescesitates the fondling/imaging where as it does not nescesitate the activity of watching.

 

[royal_archer]

No, the change is the requirment to travel. What if the person was afraid to fly and was fired for that? The only difference is that the person refused to travel because of a phobia and the other because they didn’t want to go through security.

If a person is stopped by the police and they have reasonable cause to search you for a weapon, does the contact they make with your genitals equate to sexual harassment? Is that groping?

Peace

Tim

The aspect of the phobia would fall under a disability. And recourse could be taken through the ADA.

With a police stop, there would have to be reasonable cause this is not the case with air travel. If a company forced someone into a situation where the police would consider them to have reasonable cause there would be several concerns. But it would boil down to the boss asking employee to do X, employee would have to discern that there is reasonable likelihood that if they do X it will result in undesired conduct that would be considered hostile.

 

[vz71]

OK, would this change the question slightly…

There are a number of ways to get from point A to point B.
The company may not necessarily require flight.
A train or bus could do.

Given the other options available, would a company be guilty of sexual harrassment in some way for requiring the TSA experience?

 

[Newbie2]

OK, would this change the question slightly…

There are a number of ways to get from point A to point B.
The company may not necessarily require flight.
A train or bus could do.

Given the other options available, would a company be guilty of sexual harrassment in some way for requiring the TSA experience?

That’s a good question, especially if the groping is known to have become more common or more invasive.

My guess is that while it would be tough to prove, stranger things have happened…witness the McDonalds hot coffee incident.

 

[Orogeny]

your argument does not make sense on three accounts:
-fondling is a much more intrusive than watching

And there is the issue. It is not fondling, it is a pat down. If you don’t know the difference, I feel sorry for you. And please don’t forget the real event that I shared before. You imagine fondling/groping and that woman imagined…what ever she imagined. Neither is real.

Peace

Tim

 

[royal_archer]

And there is the issue. It is not fondling, it is a pat down. If you don’t know the difference, I feel sorry for you. And please don’t forget the real event that I shared before. You imagine fondling/groping and that woman imagined…what ever she imagined. Neither is real.

Peace

Tim

One involves physical contact and the other does not. Do you think the TSA “Pat down” exams do not involve touching?

 

[pnewton]

I think this question will come down to the individual judge, if and when such a case ever comes to court. I bet there is a lawyer that can make a case for either side. The tragedy is that we have let fear drive us this far down this road of madness.