Southwest Worker Says Reporting Affair Brought Retaliation

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Jay-Anne B. Casuga

Southwest Airlines Co. moved to federal court a lawsuit alleging that it permitted retaliation against a worker who reported that her husband was having an “illicit sexual relationship” with her supervisor ( Hulings v. Southwest Airlines, Co. , D.R.I., No. 16-00672, removed 12/27/16 ).

Debra Hulings in November filed federal and state law retaliation claims against the airline in a Rhode Island state court, alleging she was subjected to a hostile work environment after complaining about the affair. Hulings claimed the supervisor ostracized her and kept her from work events; texted Hulings’ husband in front of her; and manipulated Hulings’ schedule to further the affair. Hulings’ husband also works for the airline.

Southwest removed the case from state court to the U.S. District Court for the District of Rhode Island on Dec. 27, based on Hulings’ federal law allegations under Title VII of the 1964 Civil Rights Act and the parties’ diversity of citizenship. Hulings has 30 days to challenge the move.

The case potentially could explore the issue of an employee’s “reasonable belief” when bringing Title VII retaliation claims.

The U.S. Supreme Court has yet to take a position on the reasonable belief standard, but federal appeals courts generally require workers to show that they reasonably believed they were opposing unlawful discrimination, harassment or retaliation.

Some attorneys, however, have argued that federal courts disagree about whether employees must complain about conduct that would actually violate Title VII to satisfy the reasonable belief requirement for retaliation claims. Several courts allow retaliation claims by workers who show only that they reasonably believed they opposed what laymen would consider to be discriminatory conduct, even if that conduct doesn’t rise to a level prohibited by Title VII.

Those arguments were raised in a petition for Supreme Court review of Satterwhite v. City of Houston, U.S., No. 14-1426. In that case, an appeals court ruled that a black worker couldn’t have reasonably believed that a single “Heil Hitler” comment created a hostile work environment under Title VII, meaning his complaint about the comment couldn’t support a Title VII retaliation claim. The high court in October 2015 declined to review the case.

In the present lawsuit, Hulings argued that she reasonably believed she complained about unlawful conduct when she reported the affair. Her case will be governed by precedent established by the U.S. Court of Appeals for the First Circuit, which previously has held that a worker must have a “reasonable belief that the practice the employee is opposing violates Title VII.”

A Southwest spokesman told Bloomberg BNA Dec. 27 that the company doesn’t comment on pending litigation.

Hulings’ attorney, Stephen T. Fanning of Providence, R.I., wasn’t available to provide comment prior to deadline.

Neal J. McNamara of Nixon Peabody in Providence, R.I., represents Southwest.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law