By: Amy Combs Bender
Earlier this month, thirteen flight attendants filed a complaint with the federal Occupational Safety and Health Administration (“OSHA”) against their former employer, United Airlines, claiming they were terminated in retaliation for reporting a security and safety threat. In July 2014, prior to a flight from San Francisco to Hong Kong, the flight attendants learned of what they claim were “threatening words” and “menacing images” that had been drawn on the plane’s tail cone, which was accessible only by employees with certain security clearance and only with special equipment. Specifically, the words “BYE BYE” were written next to two faces, one smiling and the other with a “frowning or devilish” expression.
The flight attendants expressed that they were concerned and uncomfortable about the situation and felt unsafe. After determining to proceed with the flight, United issued the flight attendants a direct order to work the flight. In light of the facts that the flight attendants were concerned about the nature of the message and images and their perceived threat to the safety of the crew and passengers; it was not known who made them, when, or where; they had not been discovered during prior security checks; the flight attendants were not informed of the true nature of the situation for some time after the message and images were discovered; the captain had been describing the situation as a maintenance issue and later referred to the graffiti as a joke; a full security sweep of the entire plane was not conducted; and the TSA’s recent increase in security measures for international flights, all thirteen attendants refused the direct order. Each was terminated for insubordination for refusing to comply with the direct order.
The flight attendants allege in their OSHA complaint that their terminations violated the anti-retaliation provisions of a federal aviation law. They argue that they engaged in “protected activity” when they made statements to United regarding the security threat to the aircraft and refused to fly the aircraft with the security threat unresolved. The flight attendants have requested that OSHA investigate their claims, issue a determination that their terminations were retaliatory, and reinstate them to their jobs. The complaint currently is pending with OSHA. (A picture of the graffiti and a copy of the complete complaint are available on the website of the law firm representing the flight attendants.)
Although this case deals with a specific law applicable only to the airline industry, it is a good lesson to all employers of the increasing frequency of retaliation and whistleblower claims and the need to review internal policies and procedures for reporting and responding to such claims. A cause of action for retaliation is available under all of the major federal employment laws, including:
- Title VII of the Civil Rights Act (prohibiting retaliation for opposing or participating in an investigation or proceeding regarding discrimination based on race, color, religion, sex, or national origin);
- the Americans with Disabilities Act (prohibiting retaliation for opposing or participating in an investigation or proceeding regarding discrimination based on an actual, perceived, or record of disability);
- the Age Discrimination in Employment Act (prohibiting retaliation for opposing or participating in an investigation or proceeding regarding discrimination based on age);
- the Fair Labor Standards Act (prohibiting retaliation for filing a complaint or instituting or testifying in a proceeding alleging a minimum wage or overtime violation);
- the Family and Medical Leave Act (prohibiting retaliation for exercising a right regarding taking leave for protected family or medical reasons, opposing or complaining about any unlawful practice under the statute, or filing a charge, instituting a proceeding, or giving information or testimony about an alleged violation); and
- the Occupational Safety and Health Act (prohibiting retaliation for filing a complaint, instituting or testifying in a proceeding, or exercising a right regarding safe and healthful working conditions).
In addition, under the Sarbanes-Oxley Act, employees of publicly traded companies or companies that are required to file certain reports with the Securities and Exchange Commission are protected from retaliation for reporting alleged mail, wire, bank, or securities fraud; violation of SEC rules and regulations; or violation of federal law relating to fraud against shareholders. That Act also provides that employees of any employer may assert a retaliation claim for providing truthful information to a law enforcement officer about the commission or possible commission of a federal offense. Moreover, public employees may assert Constitutional retaliation claims. Numerous other statutes permit retaliation actions in various contexts and business industries.
Furthermore, for the past few years, retaliation has been the most frequently asserted category of claim in Charges of Discrimination filed with the Equal Employment Opportunity Commission.
Employers are advised to review their employee handbooks or personnel policies to ensure they include a comprehensive procedure for reporting complaints of discrimination or harassment under any category protected by law as well as a prohibition on retaliation for reporting or participating in the investigation of any such complaint. Employers also should ensure that this prohibition is enforced on a practical level by training their managers and supervisors not to target or treat less favorably employees who have made or assisted with a complaint on account of their protected conduct.