Sexual misconduct during air travel is an issue of concern to the traveling public, the aviation industry, and the government. As discussed in greater detail in this Bulletin, Congress has enacted legislation to begin the process of addressing the issues associated with sexual misconduct during air travel, including establishing a task force to provide recommendations about training, reporting, and data collection.
FAA Reauthorization Act of 2018
The FAA Reauthorization Act of 2018 (Reauthorization Act), which went into effect on October 5, 2018, expresses “the sense of Congress” that:
(1) each air carrier should have in place policies and procedures to address sexual misconduct, including policies and procedures to—
(B) facilitate the reporting of sexual misconduct to appropriate law enforcement agencies;
(C) communicate to personnel and passengers of the air carrier the rights of such individuals with respect to sexual misconduct;
(D) train personnel of the air carrier to recognize and respond appropriately to, and to notify the appropriate law enforcement agency of, sexual misconduct; and
(E) ensure other appropriate actions are undertaken to respond effectively to sexual misconduct; and
(2) individuals who perpetrate sexual misconduct should be held accountable under all applicable Federal and State laws.1
In addition, the Reauthorization Act amended 49 U.S.C. Section 46318(a), which imposes a civil penalty for interference with cabin or flight crew, to specifically address sexual assault and the threat of sexual assault against a member of the flight crew, cabin crew, or any other individual onboard a civil aircraft, and to increase the civil penalty for violations from US$25,000 to US$35,000.2
National In-Flight Sexual Misconduct Task Force
The Reauthorization Act provides for the creation of a National In-Flight Sexual Misconduct Task Force (Task Force),3 which the Department of Transportation (DOT) has established as a subcommittee of the DOT’s Aviation Consumer Protection Advisory Committee (ACPAC).4 The Task Force is comprised of representatives from air carriers, law enforcement, federal agencies, labor organizations, victims’ advocacy groups, and other stakeholder organizations.5
The Task Force will review air carriers’ current practices, protocols, and requirements in responding to allegations of sexual misconduct by passengers onboard aircraft, including training, reporting, and data collection. Based upon that review and the first-hand accounts of passengers who have experienced sexual misconduct on flights, the Task Force will provide recommendations on training, reporting, and data collection relating to allegations of sexual misconduct.6
The Reauthorization Act states that within one year of its enactment, the Task Force is to submit a report containing its recommendations and findings to the Secretary of Transportation. Thereafter, within 180 days after receiving the report, the Secretary of Transportation is to submit to appropriate committees of Congress a plan to address the recommendations set forth in the report. The Secretary of Transportation is to make changes to guidance, policies, and regulations, as necessary, within one year of submitting the plan. The Secretary of Transportation also may issue, within one year of submitting the plan, regulations to require each air carrier and other covered entity to develop a policy concerning sexual misconduct in accordance with the recommendations and findings of the Task Force.
The Reauthorization Act further requires that within two years of its enactment, the Attorney General establish a “streamlined process” for individuals involved in incidents of alleged sexual misconduct onboard aircraft to report such allegations to law enforcement in a manner that protects the privacy and confidentiality of individuals involved in such allegations.7
Although ACPAC was scheduled to meet on January 16, 2019 to address questions relating to the operations of the Task Force and the duties of its members, the meeting did not occur until yesterday (April 4, 2019) because of the government shutdown.
At yesterday’s meeting, Judith Kaleta, Deputy General Counsel for the DOT and the Chairperson of the Task Force, made public remarks about the intended actions of the Task Force. She noted that the Task Force is mandated to review air carriers’ practices and protocols for training, reporting, and data collection. She commented that there is a lack of consistency in the United States about how allegations of sexual misconduct are addressed. She added that the Task Force will address fundamental issues such as defining “sexual misconduct,” as well as identifying problems associated with training and reporting about allegations of sexual misconduct. She stated that the goal of the Task Force is to obtain as much information from as many perspectives as possible (including victims, flight and cabin crew, law enforcement, and subject matter experts) before making a report and recommendations to ACPAC by October 2019.
The Task Force will hold its first meeting during the week of April 9, 2019, with as many meetings as necessary to follow. The Task Force meetings will be closed, but Ms. Kaleta encouraged communication with Task Force members. She also noted that the Task Force’s report and recommendations to ACPAC will be publicly available, and public deliberation will occur before ACPAC makes its final recommendations to the Secretary of Transportation.
Conclusion
As legislative and regulatory bodies take an increasing interest in preventing and addressing sexual misconduct during air travel, air carriers should review their policies and procedures addressing such misconduct to help to decrease the likelihood of these incidents, and to foster a culture of awareness, sensitivity, and accountability in the event such incidents occur.
1 FAA Reauthorization Act of 2018 Pub. L. 115–254, div. B, title III, § 338, 132 Stat. 3186, 3282 (2018).
2 As amended, 49 U.S.C. Section 46318(a) states, in pertinent part: “General Rule.—An individual who physically or sexually assaults or threatens to physically or sexually assault a member of the flight crew or cabin crew of a civil aircraft or any other individual on the aircraft, or takes any action that poses an imminent threat to the safety of the aircraft or other individuals on the aircraft is liable to the United States Government for a civil penalty of not more than $35,000.” Id. § 339, 132 Stat. 3186, 3282 (2018) (codified at 49 U.S.C. § 46318).
3 See id. § 339(A), 132 Stat. 3186, 3282 (2018).
4 See 83 Fed. Reg. 59,447 (Nov. 23, 2018).
5 See Press Release, U.S. Department of Transportation, U.S. Department of Transportation Names 14 Members to the National In-Flight Sexual Misconduct Task Force (Feb. 15, 2019) (available at https://www.transportation.gov/briefing-room/us-department-transportation-names-14-members-national-flight-sexual-misconduct-task).
6 See 83 Fed. Reg. 59,447; see also U.S. Department of Transportation, Charter Of The National In-Flight Sexual Misconduct Task Force (Feb. 11, 2019), https://www.transportation.gov/airconsumer/ACPAC/in-flight-sexual-misconduct-task-force-charter.
7 See FAA Reauthorization Act of 2018 § 339(B), 132 Stat. 3186, 3283 (2018).
Contributing Advisors
Myles CulmerDirector, BDO Advisory Services