SkyWest Lost A Case Over Relentless Sexual Harassment—Then Said The Victim Should Have Taken Psychiatric Drugs

This is a crazy story and a crazy dispute. A SkyWest employee won a sexual harassment case against the airline. The treatment was brutal over a long period of time. There’s no real dispute at this point about whether it happened, or that it was bad. The question is whether the employee had an obligation to get on drugs to dull the pain, in order to minimize suffering that SkyWest is responsible for?

The U.S. Court of Appeals for the Fifth Circuit said that,

• Normally victims have an obligation to mitigate damages
  
• But oh come on.

Sarah Budd claimed that SkyWest mechanics and a supervisor subjected her to relentless sexual and rape comments at its DFW maintenance facility, while managers ignored her complaints and conducted the minimum possible investigation. A jury found SkyWest liable for a hostile work environment and awarded $2.17 million – but that’s more than the Title VII legal maximum to the award was reduced. Ultimately, the Fifth Circuit just ruled in part that Title VII plaintiffs have no duty to reduce emotional distress damages by seeking therapy or medication.

SkyWest is the largest regional carrier in North America, operating about 500 aircraft carrying 46 million passengers a year on flights operated for United Express, Delta Connection, American Eagle and Alaska Airlines. At DFW airport, the operation involved SkyWest’s local parts and maintenance shop, presumably supporting its American Eagle flying.

The woman had worked for SkyWest in various jobs since January 2007. On August 22, 2019, she transferred to become a parts clerk in SkyWest’s heavily male DFW maintenance operation. On her first day, a maintenance supervisor asked whether she liked bondage and tried to get her alone. He later suggested coworkers should sell her as a prostitute near the airport. She testified to:

• Comments about her body and preferred sexual positions.
  
• Requests or suggestions that she perform degrading sex acts.
  
• A coworker gesturing at his crotch and offering her something I won’t repeat.
  
• Employees discussing their prospective sexual conquests on company trips.
  
• Pornographic photographs displayed and discussed at work.
  
• Statements trivializing rape, describing violent rape and claiming women report rape for attention.

She reported the comments, but says her manager appeared annoyed and that intervening would put a larger target on her. He violated airport policy by failing to investigate and notify Human Resources. (He blames her for lack of an official complaint, saying she didn’t want one due to a fear of retaliation.)

She was a sexual assault survivor and says the job brought back those experiences and caused vomiting, diarrhea, migraines, nightmares and crying spells. During one rape discussion, she cut her arm with a box cutter. By the month after her report she had planned suicide. Her husband took her for medical care. She took unpaid medical leave, saw a psychiatrist and took medication. She returned three months later, but the conduct continued.

On December 11, a candy jar decorated as a woman was used as an extended rape joke. A mechanic supposedly “raped” it, employees made humping gestures, and wrote up a mock HR complaint from the doll. She cried in the restroom and requested to go part-time. She ultimately took an early-out package at the start of the pandemic.

SkyWest’s basic position in the EEOC suit that followed was that the woman’s initial complaint lacked specifics, she wanted leave while the matter was investigated, the investigation couldn’t substantiate anything beyond the candy jar incident, and her retirement was voluntary. They won that her discharge was voluntary, not forced, but a jury unanimously found she was subjected to a sex-based hostile environment, SkyWest knew or should have known and failed to take prompt action, and that at least one manager acted with malice or reckless indifference.

The airline is required to implement a response protocol, provide annual DFW employee and employee-relations training, post and distribute Title VII notices and notify the EEOC within 30 days of DFW parts and maintenance sexual harassment complaints.

On appeal, SkyWest argued that she should have been required to take reasonable measures to reduce her emotional injury, including continuing psychiatric treatment, discussing the harassment in therapy and taking psychotropic medication. Common law generally requires injured parties to avoid preventable damages, Title VII should be presumed to include this doctrine.

The court ruled that was compensation was obtainable is something clearly articulated by Congress, and that judges shouldn’t insert language that Congress included in one section of the law and left out of another.

It amazes me the sort of behavior some people engage in at work. It certainly depends on the type of work, the background of employees often engaged in that work, and the culture of the employer or work location – what’s considered ok?

In the airline industry it’s not limited to maintenance shops – the government sued United to stop a pilot’s sexual harassment, a flight attendant sued United after her cheating pilot boyfriend posted intimate photos of her online, and Delta was sued after firing Seattle agents for giving up upgrades – a sham, they claimed, to retaliate for complaining about unwanted touching.