Wednesday, November 17, 2010

Is It Sexual Harassment to Require Employees to Submit to Pat-Down Searches that Involve Inappropriate Touching?

Tsa Is there an argument to be made that jobs requiring airline travel, which necessarily involve either full-body scans or pat-down searches, do just this?  See, for example, this thread over at Flyertalk

Here's NPR's story from this morning on TSA Administrator John Pistole defending current airport screening procedures.

I'm just going to lob this one out and ask for comments.

Hat tip: Mark Lyon.

rb

https://lawprofessors.typepad.com/laborprof_blog/2010/11/is-it-sexual-harassment-to-require-employees-to-submit-to-pat-down-searches-that-involve-inappropria.html

Employment Discrimination | Permalink

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Comments

Leave aside for the moment the Administration's insistence that the pat-downs and full-body scans are not sexual harassment. Having recently been the victim of both techniques, I have my own opinions but I'll save them for another occasion.

Accepting for the sake of argument that those techniques are offensive but for the moment legal, how does this become an employment issue?

Start with airline crew members. The Government insists on using those methods to accomplish an objective we all share, and the Government won't let the crew board until they comply. Airlines have no option short of shutting down but to insist that their crews abide by the Homeland Security rules. On what basis would a court uphold a pilot's sexual harassment suit against an airline? The airline isn't conducting the invasive searches and has no control over the government's rules. How then does the airline have an potential liability?

Now move on to an employee of a business who is ordered to fly to London to negotiate a contract. If the employee is only subject to the same lawful rules that apply to all passengers, how could the employer be liable for the government's conduct?

Your question may just be premature. The preliminary question is whether Homeland Security has the constitutional and statutory right to engage in these screening methods. If so, I can't see how any employer could be guilty of sexual harassment merely by requiring employees to fly. If not, then the rules will have to be changed, but I still can't see how an employer could be liable merely because the government did things it shouldn't have.

Posted by: Dennis Nolan | Nov 17, 2010 8:31:07 AM

I kinda wonder where all the so-called "civil libertarians" who complained about every security measure taken by the Bush Administration are.

Posted by: James Young | Nov 17, 2010 6:40:15 PM

Can a pat down be considered sexual harassment if both men and women are being subjected to the same treatment? I am under the impression that in order to be sexual harassment, the behavior in question has to be applied to an individual because of their sex. And as both sexes are equally subjected to pat downs, they (the pat downs) are clearly independent of sex.

Posted by: random grad student | Nov 17, 2010 8:50:45 PM

How can you argue that the touching is "inappropriate"? How is this any more offensive than an employer-ordered fitness for duty exam?

Posted by: Brandon | Nov 18, 2010 6:22:18 AM

On a personal level, I think that the idea of pat downs are completely inappropriate. Going through a metal detector and standing off to the side having a TSA agent wave a wand around you is enough without having to be subjected to a full on pat-down. However, employers aren't responsible for trying to comply with the law. They could publicly object to it, which would at least show good faith in the eyes of their employees. After reading, From Gatekeeper to Trusted Advisor by Andria L. Corso (http://www.andriacorso.com), I think that it would definitely show a positive leadership role for the company to make such a statement, but not necessarily have to be caught in the crosshairs of civil debate. Yes, it is passive, but sometimes, that's enough to satisfy people.

Posted by: Ryan | Nov 22, 2010 5:58:16 PM

Hi there Brandon, of course there is an exception for every rule. If a lady goes to a fitness school, she shouldn't be complaining about being harassed because her instructor touched her, right? So the "inappropriate touching" goes for those who do not necessarily have to touch someone in the workplace, but still do it.

Posted by: Sexual Harassment Lawyers | Nov 4, 2011 3:18:16 AM

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