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Harassment Case Dismissed for Lack of Supervisory Relationship

Posted on April 5, 2022

A sexual harassment claim arising from a supervisor’s actions can lead to greater liability for the employer under both state and federal law.  While both laws impose vicarious liability on the employer for a hostile work environment created by a supervisor, Massachusetts law goes further and holds employers strictly liable for harassment by a supervisor.

Massachusetts case law has expanded the definition of “supervisor” in recent years to include employees who have a “modicum of authority” over the employment of another. But recently, a Massachusetts federal court refused to find a supervisory relationship between the first officer of a flight crew and a flight attendant.

This case arose during a Dallas layover of an airline flight crew.  Four members of the group met for dinner and drinks.  Following their return to their hotel, the first officer and a flight attendant went to a hotel room together.  From there, the facts are unclear.

The flight attendant was inebriated and has no recollection of the evening’s events.  The first officer claimed that they had consensual sexual relations, after which he left the room briefly.  When he returned to the room, the flight attendant was vomiting in the shower.  According to the first officer, he assisted her to her bed and left the room for the night.

During the night, the flight attendant left a phone message for the airline’s operations center asking where the first officer was. It was apparent to the operations center that she was highly intoxicated.  They sent a representative to meet her at the airport in the morning to administer a breathalyzer test, which the employee failed.

When the flight attendant returned to Boston, she sought a sexual assault exam. She claims that she then reported the assault to an airline representative, but the employer denies that she identified the first officer as her attacker.  The flight attendant was directed to the airline’s employee assistance program, and she immediately entered a 30-day inpatient treatment program for alcohol abuse.  At the completion of the program, she took an extended medical leave for post-traumatic stress disorder (PTSD) arising from the incident.

Approximately four months after the incident and while still on leave, the flight attendant filed a charge of sexual harassment with the Massachusetts Commission Against Discrimination (MCAD).

After it was served, the airline undertook an investigation and found that it could not substantiate her claim that the officer had assaulted her.  Upon the flight attendant’s return to work, the airline granted a requested accommodation for her PTSD that involved scheduling changes to avoid layovers with male flight crew members from the night of the incident.  At one point, the employee communicated with other employees via social media, asking them to notify her if the flight officer was in Massachusetts so that she could serve him.  She claims she was verbally reprimanded for this action.

When the employee sought additional scheduling accommodations several months later, the airline refused because the requests would violate its seniority system.  The employee then resigned and filed additional claims of retaliation for the reprimand and constructive discharge (i.e., that she was forced to resign involuntarily), and a claim of disability discrimination for failure to accommodate.

The court determined that the first officer was not a supervisor, as he had no authority over any “tangible employment actions” affecting the employee.  The flight attendant put forth evidence that during flights, the first officer gave orders to the crew and directed them on certain protocols, but he had no control over work schedules, assignments and personnel matters.

Without this supervisory status, his harassment creates liability for the employer only if it is causally connected to the employer’s negligence, i.e., if the employer knew or should have known about the harassment and failed to take prompt action.  Using this standard, the court found that the employer had promptly and thoroughly investigated the incident once it was notified and could not be found liable for the harassment.

As to the disability discrimination claim, the court followed well-established legal precedent that under the Americans with Disabilities Act (ADA), an employer does not have to alter its seniority-based system to accommodate an employee with a disability.  The court also rejected her retaliation claims because 1) the reprimand had no impact on the terms and conditions of her employment and therefore was not sufficiently adverse, and 2) the constructive discharge claim was a “repackaging” of her disability discrimination claim.

The outcome of this case turned on the issue of whether the first officer was a supervisor.  Contrast this result with a harassment case last year in which a sous chef in a Boston restaurant was determined to be a supervisor because he had a “modicum of authority” over the kitchen staff.  While the airlines case seems to pull back from a trend to expand the definition of supervisor, it demonstrates the importance of supervisor status when it comes to employer liability.

Members of AIM members looking to discuss this topic or other human resources issues may call the Employer Hotline at 800-470-6277.