Originally published for HR California
A recent California Court of Appeal decision serves as a critical reminder for employers about the importance of clear policies and fair treatment in the workplace. Wawrzenski v. United Airlines, Inc. deals with allegations of gender discrimination, harassment and retaliation under California’s Fair Employment and Housing Act (FEHA). Alexa Wawrzenski, a flight attendant, claimed she faced sexist comments about her appearance and was subjected to different standards than her male colleagues when posting content on her personal social media accounts.
An anonymous complaint to her employer’s Ethics and Compliance Office alleged that Wawrzenski was using her flight attendant uniform to promote an “X-rated” website via her social media platform. An investigation determined the combination of photos in her uniform and swimwear, alongside solicitations to her OnlyFans page, violated the airline’s social media guidelines and presented a conflict of interest under its Code of Ethics. After failing to take down all photos of herself in her company uniform on her public Instagram account, the airline terminated Wawrzenski’s employment.
Wawrzenski sued her employer on the basis of gender discrimination, harassment and retaliation, as well as retaliation under Labor Code section 1102.5, wrongful termination in violation of public policy and intentional infliction of emotional distress. The appellate court ultimately reversed the trial court’s dismissal of key claims, finding sufficient evidence for a jury to decide whether the employer applied its policies fairly and whether Wawrzenski’s termination was influenced by gender discrimination. The appellate court found:
- Hostile Work Environment: Comments and actions directed at Wawrzenski about her body could reasonably be perceived as severe or pervasive harassment.
- Gender Discrimination: There were triable issues, as evidence suggested male employees were held to different standards under the employer’s social media policy related to what they were allowed to post.
- Failure to Prevent Harassment and Discrimination: The employer did not adequately address Wawrzynski’s original complaints about how she had been subjected to inappropriate comments and disparate treatment in the workplace.
The case underscores how inconsistencies in policy enforcement and inadequate responses to complaints can lead to costly litigation.
Background
In October 2015, Wawrzenski began working for the airline as a flight attendant based in Los Angeles. She was subject to certain employment policies, including 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 [the airline’s] business interests and reputation.” Photographs of employees in uniform must comply with the employer’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.”
The employer also has a Code of Ethics and Business Conduct which includes policies regarding conflicts of interest, which is defined as “any situation or activity that involves or appears to involve a conflict between [an employee’s] personal or financial interests and [the employer’s] interest.” Examples of potential conflicts of interest include “outside employment.”
Comments on Wawrzenski’s Body and Uniform Lead to Hostile Work Environment Claims
Wawrzenski described her “body type” as having a very small waist in proportion to her lower body and larger hips. She claimed 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.
Wawrzenski said that at times she experienced “an unwanted sexual advance.” On one occasion, a male flight attendant asked her, “Is your butt real?” and “How did you get a butt like that?” Wawrzenski complained to the lead flight attendant, who reassigned Wawrzenski to the front of the plane. Around the same time, a coworker on a different flight told Wawrzenski that another flight attendant “was saying negative things” about how she looked “as a female” and that she should be careful because she might unwittingly seduce a male passenger in first class who was traveling with another woman.
Her coworker told her that because she was a “young, attractive female,” she would experience “a lot of hate” and should “kind of ‘get used to it.’” Wawrzenski responded “this was sexist, and this was completely unfair, and it makes coming to work miserable because of the unequal treatment between males and females.” Wawrzenski also alleged that in that conversation (or a later one), she told her coworker that she was “being ‘discriminated’ against and ‘harassed’ because [she] was a female and because of [her] female body” and that the airline was “not enforcing policies consistently between males and females.”
In July 2016, Wawrzenski claims she was scolded for wearing a dress that was too short, as her skirt “rides up” when she walked. Wawrzenski demonstrated that her skirt length complied with the company’s uniform policy; however, since she had hips, it was suggested that Wawrzenski wear a different uniform to avoid “running into the issue with anybody else.” Wawrzenski was provided with a larger loaner uniform to replace the one she was wearing. Wawrzenski said that she complained to her supervisor that making her change her uniform was sexist, but that the supervisor did not respond.
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?” Wawrzenski said, “Males weren’t being subjected to the same scrutiny and level of treatment as females.” To her knowledge, the employer never investigated her complaints.
Employer Investigates Social Media Account
On June 11, 2020, the company’s Ethics and Compliance Office received an anonymous message about Wawrzenski’s Instagram account. The message stated, “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 … uniform in her photos and next to them are photos almost naked, obviously soliciting.” The message included screenshots from Wawrzenski’s Instagram account, which also connected users to her other social media accounts. Among the photographs were two of Wawrzenski wearing a flight attendant uniform and six of her wearing a bikini, hosiery or revealing tops. One of screenshots also showed the homepage for Wawrzenski’s OnlyFans account, which advertised access to her content for a monthly fee of $19.99.
The Ethics and Compliance Office immediately opened an investigation into the suggestive photographs on her public Instagram account and the solicitation of subscriptions to her private content site. Through the course of the investigation, Wawrzenski met with the airline’s investigative team along with her union representative. Wawrzenski was told to remove all photographs showing her in a company uniform from her Instagram account by midnight that day. She initially protested, stating that “males are up on social media… posting nudity, Speedos, swimwear, less than clothing,” and complained the request was “sexist and discriminatory.” Wawrzenski said she asked the investigators if the company was asking “everyone … to remove their photos,” and was told, “They are not under the same umbrella.”
Ultimately, she agreed to remove the photographs. Following the meeting, the investigative team recommended giving Wawrzenski the company’s highest level of “performance warning” under its progressive discipline policy. However, days later, they learned she had failed to remove one photograph of herself in uniform from her Instagram account and changed course, deciding to terminate her employment.
Court Allows FEHA Claims to Proceed to a Jury
Soon thereafter, Wawrzenski brought her lawsuit. The employer moved for summary judgment on all of her causes of action, and the trial court granted the employer’s motion in its entirety. But the California Court of Appeal reversed the trial court’s decision, concluding instead that Wawrzenski raised triable issues of fact with respect to four specific claims.
First, the court found a triable issue of whether the employer treated male employees with similar social media activities more favorably, which could suggest discriminatory intent. In support of her claims that males were being treated differently than females, Wawrzenski submitted evidence of three male employees who also had social media accounts that included pictures of them in their uniforms and in arguably suggestive poses.
Two of those accounts included links or references to other accounts where the employees could earn income unrelated to their employment with the company. All four social media accounts included pictures of employees in uniform and partially nude or in swimwear. The court ultimately found the evidence compelling, noting two of the three comparators’ accounts included links or references to monetized accounts, and that the same social media policy applied to all four employees for the same purposes.
Wawrzenski asked during the investigation meeting, “If I was a male in my swimwear, would you be calling a meeting and holding an investigation,” which suggested disparate enforcement of the social media policy. This evidence created triable issues of material fact regarding whether Wawrzenski’s belief that the employer engaged in prohibited employment practices was objectively reasonable. Thus, the court found that Wawrzenski submitted sufficient circumstantial evidence to create a triable issue of material fact regarding whether the company’s stated reasons for terminating Wawrzenski were pretextual.
Second, the court found Wawrzenski raised a triable issue as to whether her coworker’s and supervisor’s comments about her body, including discussions about her compliance with the company dress code, created a hostile work environment. According to the court, the “right to work in a place free of discrimination” was denied “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.”
The court found the evidence that “coworkers and other … employees made offensive comments about Wawrzenski’s body on a monthly basis, 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.”
Third, the court addressed the issue of whether the employer retaliated against Wawrzenski for her complaints about discrimination and harassment. Wawrzenski submitted evidence she complained about the company’s enforcement of its uniform policy and the harassing comments at least three times between December 2019 and May 2020. She made similar complaints about the company’s disparate enforcement of its social media policy on July 2, 2020, and was fired on July 17, 2020, just two weeks after memorializing her complaints in the statement she drafted following the investigatory meeting. This evidence created an inference of retaliatory motive.
The appellate court held that a reasonable trier of fact could find that, even if Wawrzenski’s Instagram account with its link to a subscription-based OnlyFans page violated the airline’s social media policy, the company retaliated against Wawrzenski by terminating her employment after she complained about the disparate enforcement of that policy between men and women.
Fourth, the court decided whether the employer took adequate steps to prevent discrimination and harassment. The airline argued, “Wawrzenski never submitted a formal complaint through any … official channels … until after her investigatory meeting,” and that her complaints were “too vague to constitute protected activity.” But the law does not require Wawrzenski to submit a formal complaint; bringing her concerns to her manager on multiple occasions was enough.
Practical Lessons for Employers
This decision serves as a cautionary tale for businesses about the legal risks of vague policies, inconsistent enforcement and dismissive responses to employee complaints. While the use of social media and platforms like OnlyFans may raise legitimate business concerns, the employer’s handling of such issues must be consistent and well-documented.
Employers who proactively and thoroughly investigate complaints and treat all employees equitably can better shield their businesses from litigation while also fostering a workplace culture of trust and respect.
The court’s decision offers valuable takeaways for business owners looking to safeguard their companies from similar lawsuits:
- Enforce Policies Consistently. Selective or inconsistent enforcement of workplace rules can expose businesses to claims of discrimination. Wawrzenski was terminated, while male colleagues engaging in similar conduct faced little or no disciplinary action. Employers must ensure all employees, regardless of gender or other protected characteristics, are held to the same standards.
- Strive for Clarity in Social Media Policies. With employees increasingly engaging with social media both personally and professionally, clear and specific policies are essential. In this case, the company’s broad policy required employees to ensure social media activity had a “positive effect” on its business interests and reputation, but vagueness in how it was applied contributed to the dispute. The National Labor Relations Board (NLRB) also has a strong interest in ensuring that employers carefully review social media policies to make sure they protect the company’s reputation with customers and/or the general public without impermissibly limiting employees’ rights to discuss working conditions among themselves in violation of the National Labor Relations Act (NLRA).
- The Law Does Not Require Employees to Submit Formal Complaints to Require Employer Action. The court’s decision highlighted the employer’s failure to investigate Wawrzenski’s complaints about harassment and unequal treatment. It also expressly held the employer accountable for its failure to investigate despite not concluding that Wawrzenski filed a formal complaint. It held that bringing her concerns to her manager on multiple occasions was enough. Employers should document and address complaints promptly and avoid dismissing issues raised during investigations as irrelevant.
- Avoid Perceptions of Retaliation. The timing of discipline can create a perception of retaliation even when there is no such intent. Therefore, it is important when making adverse employment decisions to take into consideration what has transpired in the workplace shortly before taking such action, even if unrelated. Transparency and thorough explanations of decisions can help reduce this risk. The employer’s failure to fully investigate Wawrzenski’s complaints left the company vulnerable to claims of discriminatory motives.
