Even if an individual employee complies with the dress code, can she be asked to change clothes because she is too distractingly curvaceous? Can she be terminated for inappropriate social media activity, when similarly situated males were not? Was she terminated because she complained about discrimination and harassment, or because she posted risqué pictures while wearing a company uniform. Buckle up for a first class flight through the legal hurdles necessary to reach a jury.
United Airlines has personnel guidelines titled Working Together that “explain what actions are expected of [employees] and . . . communicate a clear understanding of what it means to be employed by United.” The guidelines state: “We’re committed to creating a workplace free from harassment and discrimination (treating someone less favorably). We defend our employees from harassment and discrimination based on their . . . gender . . . or any other protected characteristic under applicable law.” The guidelines encourage employees to “report concerns promptly until resolved” and to consider reporting offensive workplace behavior to “a member of [their] management team,” the HR department, or the company’s ethics and compliance helpline. United prohibits retaliation against employees for reporting misconduct.
United also has social media guidelines that apply to employees’ social networking activities while “on or off the job, including social networking you use without a name or under a false name.” The social media guidelines encourage employees to use “good judgment” and to ensure posts have “a positive effect on United’s business interests and reputation.” Photographs of employees in uniform must comply with United’s uniform standards, which ensure flight attendants’ “look is consistent for every customer.” For female flight attendants, the length of a skirt or dress “may not exceed [one] inch above or [one] inch below the crease of the back of the knee.”
Finally, United’s code of ethics and business conduct includes policies regarding conflicts of interest. The code defines a conflict of interest as “any situation or activity that involves or appears to involve a conflict between [an employee’s] personal or financial interests and United’s interest.” Examples of potential conflicts of interest include “outside employment.”
Alexa Wawrzenski began working for United in October 2015 as a flight attendant based in Los Angeles. She describes her “body type” as having a very small waist in proportion to her lower body and “larger hips.” She claims that throughout her employment she experienced harassing, derogatory, and objectifying comments about her body and the way she looked in her uniform. The types of comments she heard “several times a month” included “offensive jokes” about her “breaking necks” of male employees who looked at her, remarks about her “butt,” and questions about where she had her “surgery done” and how much she paid for “her body.” She said that “at times” she experienced “an unwanted sexual advance.”
For example, in May 2016 a manager “cleared” Wawrzenski to board a flight, but a supervisor stopped her and said, “Your body looks inappropriate in the uniform.” She complained that the comment was “sexist” because it was directed at her body and that she was subject to greater “scrutiny” than male flight attendants.
In July 2016, Wawrzenski was “scolded” for wearing a dress that was too short and “rides up” when she walks. When she showed that her dress met the code, the supervisor replied she had “hips” and suggested she wear a different uniform.
In 2017 a pilot treated Wawrzenski differently from male flight attendants by “scolding” her for her “appearance.” In late 2019 a gate agent tried to delay a flight to allow a supervisor to approve Wawrzenski’s appearance. A coworker heard the gate agent say, “the little blonde, white girl. . . . Where did she come from, the school of Kardashian? She needs to get her money back for her body.”
According to Wawrzenski, “males weren’t being subjected to the same scrutiny and level of treatment as females.” Managers told her she was a “young, attractive female,” that this is common behavior “at the base and to kind of ‘get used to it,’” and that “this is United.”
Wawrzenski was warned she would experience “a lot of hate” because she was young and attractive. She replied “this was sexist, and this was completely unfair, and it makes coming to work miserable because of the unequal treatment between males and females.” In early 2020, a male flight attendant said to Wawrzenski in the back of a plane, “It’s not every day I get to work with a pretty girl.” He asked her, “Is your butt real?” and “How did you get a butt like that?”
Wawrzenski complained that the “level of . . . targeting” seemed to be escalating. In that conversation or a later one, she complained that she was “being ‘discriminated’ against and ‘harassed’ because [she] was a female and because of [her] female body” and that United was “not enforcing policies consistently between males and females.” To her knowledge, United never investigated her complaints.
On June 11, 2020, United’s ethics and compliance office received this anonymous message about Wawrzenski’s Instagram account: “I came across this profile on Instagram, Flight Attendant is using her platform to get people to pay for x rated website, she’s in United uniform in her photos and next to them are photos almost naked obviously soliciting.”
The message included the homepage for Wawrzenski’s Instagram account and eight photographs of her, including two wearing a United flight attendant uniform and six of her wearing a bikini, hosiery, or tops showing cleavage. The second screenshot showed an Instagram post of her in a hotel room wearing a United flight attendant uniform. The third screenshot showed the homepage for her OnlyFans account, “Exclusive private content you won’t see anywh[ere else],” with content for a monthly fee of $19.99.
On June 30, Wawrzenski was issued a letter of investigation, stating a meeting scheduled for July 2 would investigate “correspondence received by United’s Ethics and Compliance Office about [her] posting suggestive photographs on [her] public Instagram account and soliciting subscriptions to [her] private content site for a fee.” The letter said she appeared in her United uniform in some of the photographs. She was also accused of a conflict of interest for posting that passengers should not book flights during the COVID pandemic because of health concerns.
Wawrzenski’s union rep responded that “this is what [this] generation of the world is doing now. They’re all posting . . . their travels and, you know, they’ve got swimsuits on.” Wawrzenski said other flight attendants, and “even the brand ambassadors that United has chosen, have these photos of themselves . . . in their uniforms on their personal [social media] pages.” She said her father took several of the photographs and contested the word “soliciting” to describe her social media activity.
Toward the end of the six-hour July 2 meeting, Wawrzenski was asked to remove, by midnight, all photographs showing her in a United uniform from her Instagram account. She protested, stating that “males are up on social media . . . posting nudity, Speedos, swimwear, less than clothing, and . . . you’re not investigating them.” She complained the request was “sexist and discriminatory,” but she agreed to remove the photographs. But she was late removing the pictures, so United terminated her.
Wawrzenski filed a complaint with the Department of Fair Employment and Housing (which has since changed its name to the Civil Rights Department) and in October 2020 obtained a right-to-sue letter. In her ensuing lawsuit, she alleged claims for gender discrimination, hostile work environment harassment, and retaliation in violation of the Fair Employment and Housing Act (FEHA); failure to prevent discrimination, harassment, and retaliation in violation of FEHA; and various other claims.
United asked the court for summary judgment (dismissal in its favor without a trial) on all Wawrzenski’s claims. The trial court granted United’s request in its entirety, ruling: “United has shown a legitimate nondiscriminatory basis for terminating [Wawrzenski], and [she] does not show substantial evidence that the reasons given for the termination were pretextual [an excuse to cover up the true discriminatory reasons].”
Rejecting Wawrzenski’s claim of hostile work environment harassment, the trial court ruled as a matter of law the harassment she experienced was neither severe nor pervasive. It ruled she failed to present evidence showing a causal connection between her harassment claim and United’s decision to terminate her employment. The court also rejected her claim an Instagram post about the public flying during the COVID pandemic was protected activity. She timely appealed.
Wawrzenski didn’t present direct evidence of gender discrimination, so the appellate court gave a full discussion of how to prove a case by circumstantial evidence. She may show “an inference of discrimination” through any circumstances “surrounding the adverse employment action [that] give rise to an inference of discrimination.”
Here, Wawrzenski presented evidence of male United employees with social media accounts that included pictures of themselves in uniform and in “suggestive” poses, and an Instagram account showing pictures of another male employee almost nude and in uniform, with a link to another account called a “Drag Account,” with the employee’s email address and his Venmo account. A United “brand ambassador” named “Aviator Dave” had an Instagram account that included pictures of himself in uniform, in swimwear, shirtless in open bathrobes, and in bed. The account linked to “Aviator Dave TV,” where subscribers could access information about flying. These three men were not disciplined.
The trial court had ruled the three male employees were not comparable, not sufficiently similarly situated to Wawrzenski, but the court of appeal disagreed. Comparable “employees’ roles need not be identical; they must only be similar ‘in all material respects,’” and “materiality will depend on context and the facts of the case.” Here, all of the social media accounts included pictures of United employees in uniform and partially nude or in swimwear, two of the three comparators’ accounts included links or references to monetized accounts, and the same social media policy applied to all four employees for the same purposes. A reasonable jury could conclude Wawrzenski and the three male United employees were “sufficiently similarly situated to support an inference of discrimination.”
As the final piece of circumstantial proof of discrimination, the court of appeal found enough evidence to allow a jury to decide United’s explanation to be a pretext, hiding a discriminatory motive. The evidence of disparate treatment or policy enforcement is a permissible means to establish pretext. Secondly, there was evidence United failed to investigate Wawrzenski’s complaints of discrimination and harassment. Finally, she presented evidence there was a discriminatory work atmosphere at United.
Turning to workplace harassment, too, the court of appeal found enough evidence to reach a jury. It quoted the California legislature that “Harassment cases are rarely appropriate for disposition on summary judgment.”
Here, the comments about Wawrzenski’s body and the way she looked in her uniform were enough to establish the harassment claim. The evidence that coworkers and other United employees made frequent offensive comments about her body, that flight attendants and pilots commented on her “butt,” that her supervisor and others made her change uniforms several times based on unfounded accusations, and that her workplace became “miserable” created triable issues of material fact regarding whether her emotional tranquility was disturbed and her sense of well-being was undermined in the workplace.
California discrimination law makes it “an unlawful employment practice ‘for any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint.’” The trial court found no causal connection between Wawrzenski’s harassment complaint and her termination, but the court of appeal disagreed.
A retaliation claim may be filed by an employee who has complained of or opposed conduct they reasonably believe to be discriminatory, even when a court later determines the conduct wasn’t actually prohibited. The “reasonableness of the employee’s belief ‘has both a subjective and an objective component.’” Wawrzenski complained about United’s discriminatory enforcement of its social media and uniform policies and about the harassing comments, and her belief that she was complaining about discriminatory conduct was objectively reasonable.
Because the employee’s burden here is fairly minimal, the temporal proximity between an employee’s complaint and a subsequent termination may satisfy the causation requirement. Here, United fired Wawrzenski just two weeks after she memorialized the harassment and discrimination complaints she had made in the prior six months. This timing created an inference of retaliatory motive.
Because Wawrzenski’s discrimination, harassment, and retaliation claims were reinstated, the court also reversed the order dismissing her claim that United failed to prevent the conduct. Wawrzenski v. United Airlines, CA2/7 B327940, filed 10/22/24, pub. 11/12/24).
This case demonstrates that even if an employer has good reason to terminate an employee, concurrent bad conduct can sink a defense. United was likely within its rights to discipline or terminate a flight attendant who displays risqué photographs in a company uniform while pitching an OnlyFans account. However, when coupled with the undue attention to Wawrzenski’s figure and uniform, and its lack of consistent enforcement of its policies, United created a knot for the jury to untangle.
Mark I. Schickman is the editor of California Employment Law Letter. You can reach him at mark@schickmanlaw.com.
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