Working at sea is dangerous. It is an environment where injuries can occur in seconds. Because of this danger, individual seamen attached to a ship’s crew have access to specific legal remedies for injuries. These include maintenance, cure, and unearned wages (“maintenance and cure”); 42 U.S.C.§ 30104 (“Jones Act”); and unseaworthiness. Maritime remedies could provide limited recovery for shipborne harassment claims.
Title VII of the Civil Rights Act of 1964 (“Title VII”) and equivalent state laws are the usual route for recovery for harassment in American workplaces. Depending on the jurisdiction, claims of harassment under Title VII can be brought with either the EEOC or a state agency between 180 and 300 days after the discriminatory event. However, a potential plaintiff has up to three-years to file claims under the maritime remedies.
“Maintenance and cure” is the easiest to way recover damages for harassment. Under this remedy, if a seaman is injured in the course of his or her employment aboard ship, the owner is obligated to provide food, lodging, and cover reasonable medical expenses to his or her maximum cure. An employer is bound to give the seaman any unearned wages to the end the of the voyage, employment contract, or pay period if there is a short voyage without “signed articles” (a contract defining employment conditions signed by a seaman when joining a ship’s crew). If a plaintiff has suffered severe enough emotional injury or mental anguish aboard the ship and needs medical attention, including therapy, he or she is entitled to maintenance and cure.
Under the Jones Act, a plaintiff needs to allege that negligence of either a crewmember or the shipowner caused the injuries. The harm can be emotional if it is manifested in physical symptoms. A plaintiff may be able to recover for emotional damage under the Jones Act if he or she can prove the negligent conduct placed him/her at immediate risk of physical harm. For instance, unwelcome sexual advances, requests for sexual favors along with verbal and physical behavior can create direct threats to a person’s safety. Jones Act claims for harassment can be brought because of a shipowner’s negligent hiring and/or its failure to supervise the crew.
Harassment claims brought under “unseaworthiness” are difficult to support. If a vessel is unfit or unsafe for its intended purpose, it is unseaworthy. There is an absolute obligation to provide a seaworthy vessel. A dangerous seaman can create an unseaworthy condition; however, seamen are only unfit if they behave savagely and viciously. Harassing behavior can create an unseaworthy situation, but the behavior must be accompanied by an assault with a weapon or factors including the harasser’s exceptionally quarrelsome nature, constant drunkenness, or severe mental illness.
Shipowners, mariners, and other people working on the water should be aware that it is possible to recover damages for harassment at sea. Shipping companies with American flagged vessels should understand that there is potential liability under maritime law as well as under Title VII for workplace harassment of crewmembers. If you have any questions about workplace discrimination and harassment, please contact one of the attorneys at Mitchell & Sheahan, P.C.