United Airlines (NASDAQ: UAUA) has settled the sexual harassment case of a former female pilot even though her exposure to pornography that was hidden on aircraft and not personally directed at her may not have amounted to an “objectively abusive” work environment.

Lisa Stout, a United 737 captain based out of Seattle, voluntarily grounded herself after finding porn in the cockpit on approximately 21 flights between June 8, 2004 and her last flight on June 26, 2005. Most of the images were taped or glued inside the pilot's closed ashtray or under the cap of a safety device known as the “stickshaker.”

In a November 2008 decision denying summary judgment, a judge found a triable issue as to whether “a reasonable woman would find that the instances of pornography in the cockpit were pervasive and severe enough to alter the conditions of her employment.”

“[T]he pornography was hidden in closed spaces around the cockpit and was removed or made inaccessible before takeoff at each reported instance,” U.S. District Judge John C. Coughenour noted. “In addition, the pornography was not accompanied by demeaning comments and may not have been targeted at Plaintiff.”

But United mounted a surprisingly tepid defense to the case and, with a trial set for March 30, agreed to a confidential settlement earlier this month.

The airline, for example, did not argue that hidden porn is part of the “social context” of the pilot's workplace. The U.S. Supreme Court has said that an inquiry into the “objective severity” of harassment “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).

In fact, United's problems began with its response to Stout's complaints to supervisors. In “e-notes” sent to all United pilots and mechanics, it referred only to “inappropriate materials” being found in the cockpit of aircraft.

“Defendant did not explicitly emphasize to all its employees that serious punishment would result if the perpetrators were caught,” Coughenour said in his summary judgment ruling, and the notes “were so vague ... that it is not even clear to the Court that employees were gently reminded of United’s sexual harassment policies.”

After Stout filed her suit in May 2007, United argued rather weakly that the porn was not “subjectively offensive” to her because she once worked in a retail store that sold adult magazines and, as an artist, she draws live nude models. Coughenour ruled it was “highly unlikely that a jury could find that Plaintiff did not subjectively perceive her working environment to be abusive towards women.”

In settling the case, the defense was no doubt aware that a female Continental Airlines (NYSE: CAL) pilot who found porn on the flight deck won a judgment of more than $150,000 in 1998. United was also facing the threat of punitive damages.

But there might have been “social context” evidence to support an argument that the harassment was not “objectively abusive.” According to a comment posted on the Seattle Times website by a veteran pilot, “There is a sort of gallows humor” among pilots and

their ability to laugh and make light of what you might term "sensitive" things is a part of what allows them them to be able to land a jet in the middle of a freezing river with the lives of dozens or hundreds of people hanging in the balance.

Stout is also the author of “Aardvark Memories,” a novel about a female pilot which features a drawing of two nude women on the cover. “Though recently retired from aviation, she has always considered herself first, foremost and always a writer and artist whose bursting palette of post-impressionist oils on canvas showcase strong ethnic women in deep contemplation,” her author's bio says.

By Matthew Heller
3/30/09