During a layover in Rome, two Delta flight attendants went shopping. Afterward, the male employee invited his female co-worker to his hotel room to sample a new wine. After drinking a half glass, she blacked out and allegedly was raped by him.
Three weeks later, she reported the drugging and rape to a supervisor. The male flight attendant had a history of rape or assault allegations brought by other flight attendants during layovers or off-duty time, but no disciplinary action had been taken. The victim sued for sexual harassment based on a hostile work environment.
A federal appeals court held the airline accountable. Even though the attack occurred off duty and not at the workplace, the court said attack could be found to have occurred in the "work environment." (Ferris v. Delta Air Lines Inc., 2nd Cir., No. 00-7921, 2001)
The court said Delta had been on notice that the flight attendant twice allegedly raped female co-workers. Yet Delta did nothing about it or encouraged employees to forgo filing formal complaints. The appeals court rejected the company's argument that the prior alleged rapes hadn't placed Delta on notice because those earlier complaints involved off-duty encounters unrelated to work.
Advice: Don't shrug off harassment complaints that involve off-duty or off-premises behavior. Courts are willing to stretch the boundaries of what's considered your "work environment."
In this case, the court's reasoning that the hotel room was part of the work environment was mainly based on the fact that Delta booked and paid for the rooms, the employees didn't have friends where the layover occurred and it was likely the crew members would socialize.
As a result, your sexual harassment policy and training should make clear that harassment is forbidden during off-the-job business travel. You could be held liable for employees' behavior during these off-duty hours.
Also, you have a duty to investigate complaints of misconduct at any off-site location that could be considered a "workplace environment", particularly with employees who have accumulated complaints. The court said Delta knew that this worker had placed other employees at risk. And it was negligent in failing to take steps that might have prevented this latest incident.
- Probe all complaints; even positive review can trigger retaliation claim
- Are arbitration agreements right for your organization?
- Playing favorites: How to avoid unintended partiality in decisions, reviews
- Good faith wins court cases! Don't use investigation to trap employee
- 'Same' offense? Document why discipline differs