Can an attendance policy be illegal gender discrimination? The Association of Professional Flight Attendants thinks so. It has filed a complaint with the EEOC, claiming American Airlines’ new attendance policy causes gender discrimination against flight attendants across the country.

In this blog post I will review reports that the Association of Professional Flight Attendants plans to file gender discrimination claims against American Airlines. I will discuss what gender discrimination against flight attendants looks like and how the company’s attendance policy may cause discrimination based on sex or gender. I will also explain what flight attendants and other airline workers can do if they face gender discrimination at work.

New Attendance Policy Creates “Cruel” Punishments for American Airlines Flight Attendants, Union Says

On October 1, 2018, American Airlines rolled out a new attendance policy for its more than 27,000 flight attendants nationwide. The new policy assigns flight attendants one or more points for any attendance infractions, including:

• Coming to work late
• Failing to show up for scheduled trips
• Taking more than 2 personal days
• Being sick during “critical periods” including July 1-7, the Thanksgiving week, and December 22 to January 3

Once a flight attendant receives 4 to 6 points during a rolling 12-month period, she or he will be required to undergo a performance review. At 8 points, the flight attendant will receive a final warning. Ten points will result in termination.

The attendance policy was announced in August 2018. Within hours, flight attendants across the country were objecting to its terms. One unnamed flight attendant wrote immediately to American Vice President of Flight Service Jill Surdek to say:

“This attendance policy, as written, is punitive, offers no human factor, and is being received by flight attendants as cruel and unusual . . . if a pipe bursts in our house, a tire goes flat or some other Act of God occurs, it’s not easy to jump on a plane for three days and forget that you are going to come home to a catastrophe.”

Can an Attendance Policy Cause Gender Discrimination?

The Association of Professional Flight Attendants, the union representing the affected American Airlines workers promised to resist the new attendance policy right away. After several months of investigation, the union filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), claiming the attendance policy causes gender discrimination against flight attendants.

The argument is based on the gender disparity between flight attendants and other American Airlines crew. The new attendance policy does not apply to American Airlines pilots, a majority of whom are men. By comparison, 75% of flight attendants are women. Since the primarily male pilots have a more relaxed standard, the union says the new attendance policy causes gender discrimination against the female flight attendants.

The airline has denied the allegation that its attendance policy causes gender discrimination and is opposing the EEOC claim.

Responding to Unintentional Discrimination

American Airlines may not have meant to cause gender discrimination against flight attendants, but that doesn’t mean the company won’t face an EEOC complaint or even a federal lawsuit for violating Title VII anti-discrimination laws. “Disparate impact” or “adverse impact” claims can help employees respond to unintentional discrimination that happens when a new policy affects one group of employees more negatively than others based on a protected characteristic like sex or gender. In these cases, it is up to the employees (the plaintiffs) to establish that the policy affects the protected group so much more (or worse) that the court can infer discrimination from those effects.

Showing the disparate impact of unintentional gender discrimination usually means the female employees filing the complaint will need to rely on statistics to show they were treated worse than their male counterparts. However, even where the numbers fall in an employee’s favor, the employer can still defend against a gender discrimination claim by showing that the company has a legitimate business reason for the policy. For example, American Airlines responded to the flight attendants’ complaint by issuing a statement saying:

“[O]ur policy ensures we’re staffed to provide our customers with the great service they expect and deserve when flying American.”

It will be up to the EEOC and the courts to decide whether in this case, applying different attendance policies to pilots and flight attendants creates a disparate impact severe enough to count as gender discrimination under Title VII. But the union’s complaint helps to show employees across the country that even when gender discrimination is part of company policy there are options to fight back and protect their rights.

At Eisenberg & Baum, LLP, our experienced employment discrimination attorneys can help. If you believe a company policy is causing gender discrimination at work, we will review your situation and help you plan a strategy to change the policy and pursue options in or out of court. Contact Eisenberg & Baum, LLP, to talk to an employment discrimination attorney today.