Should Employers Be Liable for Revenge Porn Among Workers?

(Bloomberg) -- For more than a decade, a United Airlines pilot posted online sexually explicit photos of his ex-girlfriend, who was also a flight attendant at the airline. She complained to the authorities and to United -- and now the company is facing a federal lawsuit for, the government says, allowing the pilot’s behavior to go unchecked.

In a complaint filed last week, the Equal Employment Opportunity Commission says that by failing to take action when the flight attendant reported the pilot’s behavior, United Airlines tolerated the harassment and created a hostile work environment. United disagrees with the EEOC’s description of the situation and said in a statement that it “does not tolerate sexual harassment in the workplace.”

Nearly 40 percent of Americans have dated a co-worker, and this case suggests employers may be liable for what happens during the relationship -- or after it ends. “This is not just saying this person did something to me, but there is a responsibility on part of my employer to do something about this,” said Mary Anne Franks, a professor of law at University of Miami and the president of the Cyber Civil Rights Initiative.

Posting Photos

The United case centers on Mark Uhlenbrock, the pilot, who took both consensual and non-consensual photos of his then-girlfriend during their four-year relationship, according to the complaint. After they broke up, he posted those photos online over a period of 10 years, without her consent.

This is what’s commonly known as “revenge porn.” It’s a criminal offense in 40 states and the District of Columbia, and the flight attendant went to the authorities. Uhlenbrock, 64, eventually pleaded guilty to "internet stalking" and is serving a 41-month prison term.

She also went to her employer. The posts, which identified her by name and employer, were meant to affect the flight attendant’s conditions at work, the EEOC argues. In one, Uhlenbrock told passengers to “look for her when you fly,” saying that she was a “new reason to ‘Fly the Friendly Skies.’”

The flight attendant went to court to get an injunction to stop him from posting the photos. She was also awarded monetary damages. But in spite of her repeated complaints to United Airlines officials, the pilot kept his job until he was arrested in 2016.

Company Responsibility

The EEOC argues that a company has the responsibility to protect its employees from harassment, even if that harassment happens online instead of in the break room. By effectively allowing Uhlenbrock to continue to post the images without consequence, the government alleges, it failed to stop the victimization of its other employee.

“It really does fit in nicely with traditional anti-sexual harassment principles,” said David Lopez, the former general counsel for the EEOC. “The civil rights laws are an effective weapon.”

In fact, they may be more effective than the revenge porn laws themselves, which typically carry a misdemeanor charge and, possibly, a fine. Revenge porn is akin to blackmail, often used to threaten victims with the personal and professional consequences of exposure. In some cases, victims may lose their jobs if their employer finds out that there are explicit photos of them online.

Jeopardizing Careers

“Based on the experience of hundreds of victims my firm has helped, using non-consensual pornography to jeopardize their victims’ careers is a favored tool of jilted, vengeful exes," said Carrie Goldberg, a New York-based lawyer who specializes in sexual privacy.

But there’s little precedent. In 2015, Roman Catholic Archbishop of San Francisco settled a suit brought by a biology teacher after students took pictures up her skirt and signed her up for a porn site. In other cases, courts have found that there’s no discrimination if the animus rises from a failed relationship, which is often the case for revenge porn victims.

This case, however, puts employers on notice, Goldberg said. “While revenge porn laws don’t directly address workplace concerns, companies should feel compelled to draft and implement policies that do – and stick to them.”

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