By Steven P. Bradford

Following crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302, the Federal Aviation Administration (“FAA”) issued an Emergency Order grounding Boeing 737-8 and -9 (“Boeing MAX”) aircraft.[1]  The order was rescinded on November 18, 2020, allowing Boeing MAX aircraft to resume flight operations once airlines complete prescribed corrective actions to remedy the system identified as the common cause in the two accidents.[2]  While detecting and rectifying the faulty system will prevent future mishaps, it is incumbent upon rule-makers to identify processes that allowed a faulty system to be certified.

In developing a fuel-efficient replacement for the 737,[3] Boeing filed patent applications in 2009 for a new aircraft design with an elliptically-shaped fuselage.[4]  In 2010, Boeing’s primary competitor, Airbus, unveiled fuel-efficient engines for incorporation onto existing airframes.[5]  Anxious that Airbus would corner the market on fuel-efficient aircraft, Boeing pivoted to modify its 737 design rather than design a new aircraft.[6]  This strategy saved time in the design process, and shortened the certification timetable.[7]  Certification of new designs can take up to nine years,[8] but amended type certificates, granted to aircraft modified from already certified designs,[9] takes three to five years.[10]  Boeing did not have time to design and certify a new aircraft with an elliptically-shaped fuselage; rather, Boeing had to modify its existing 737 design and pursue an amended type certificate to remain competitive.[11]  To further expedite the certification process, Boeing made use of a program authorized by federal statute called Organization Designation Authorization (“ODA”), which aims to increase efficiency and decrease FAA workload[12] by delegating aspects of the certification process to external organizations, including the manufacturer.[13]  

As a result, the Boeing MAX received an amended type certificate in March 2017,[14] only a year after Airbus’s fuel-efficient aircraft entered service.[15]  However, this shortened process contributed to the crash of two aircraft in two years of flight operations. Investigations identified multiple factors contributing to the mishaps, including the amended type certification process.[16]  This incident raised the question: at what point do amendments to an existing design become so significant that the aircraft should be treated as a new design?[17]

New type certificates are required if “the FAA finds that the proposed change in design . . . is so extensive that a substantially complete investigation of compliance with the applicable regulations is required.”[18]  Conversely, the Changed Product Rule authorizes the granting of amended type certificates if the FAA determines changes are not significant.”[19]  Significant changes are those where the general aircraft configuration is not retained, or assumptions used in the previous certification are no longer valid.[20]  To clarify this nebulous standard, the FAA published a non-exhaustive list of significant versus non-significant changes.[21]  However, federal regulation still does not clearly distinguish significant from non-significant, or delineate between amendments and new designs.  In fact, representatives from the FAA, NASA, and civil aviation authorities from several countries found that “there are no criteria for determining when the core attributes of an existing design make it fundamentally incapable of supporting [] advancements . . . and therefore warrant consideration of a . . . certification under a new type certificate.”[22]

Determining whether a change is significant is further complicated by the ODA program, delegating aspects of certification to the manufacturer.  Here, the FAA delegated to Boeing testing of the Maneuvering Characteristics Augmentation System (MCAS) integrated into the flight controls, later found to be responsible for the Lion Air and Ethiopian Airlines accidents.[23]  As MCAS proceeded through certification at Boeing, it was tweaked, made more robust, and given greater authority to move flight control surfaces without pilot input.[24]  However, communication between Boeing working groups and with the FAA was so poor that the FAA did not fully understand the extent of changes made to MCAS since it was first disclosed, nor the authority it had over flight control surfaces.[25]  Had the FAA been aware of MCAS’s ultimate capabilities, it likely would have required additional evaluation.[26]  Simply put, poor communication left the FAA unaware of the MCAS capabilities and unable to accurately determine whether its inclusion in Boeing MAX aircraft constituted a significant change from previous 737s.  While ODA programs are not inherently flawed,[27] poor communication and institutional pressure impaired the decision making of ODA representatives tasked with certifying systems and components on behalf of the FAA.[28]

The proposed Aircraft Certification Reform and Accountability Act seeks to better define what constitutes a significant change.  The act asks the FAA to weigh whether modifications to flight control systems should preclude the issuance of an amended type certificate,[29] essentially asking if all flight controls modifications should be classified as “significant” changes.  The act directs the FAA to “improve the process of issuing amended type certificates,”[30] but does not mandate specific procedural changes.  While acknowledging clarification is necessary, the FAA stated that future research and coordination is required before making any changes to certification policy.[31]  Therefore, changes to 14 C.F.R Subpart B  governing certifications are still several years away, based on timelines set forth in the proposed act.[32] Much of the act discusses cultural changes to the FAA and aircraft manufacturers in an effort to foster greater collaboration between working groups, urging a holistic approach to aircraft design to understand how changes to one system will affect other systems.  In addition to cultural changes, the support the act has received thus far, as well as congressional and FAA finding detailed in reports written after the grounding of Boeing MAX aircraft, procedural changes to the certification process should be anticipated in the future.

[1] U.S. Dep’t of Transp., FAA Emergency Order of Prohibition 2 (Mar. 13, 2019),

[2] U.S. Dep’t of Transp., FAA Recission of Emergency Order of Prohibition 1–2 (Nov. 18, 2020) See also Airworthiness Directives; The Boeing Company Airplanes, 85 Fed. Reg. 47698 (Aug. 6, 2020) (to be codified at 14 C.F.R. pt. 39); FAA Notice 8900.570, at 2 (Nov. 18, 2020),

[3] Boeing Firms Up 737 Replacement Studies by Appointing Team, Flight Global (Mar. 3, 2006),

[4] U.S. Patent Application No. 12/624,322 (filed Nov. 23, 2009).

[5] Press Release, Airbus, Airbus offers new fuel saving engine options for A320 Family (Dec. 1, 2010),

[6] Darryl Campbell, Redline: The many human errors that brought down the Boeing 737 Max, The Verge (May 2, 2019),

[7] Id. See generally 49 U.S.C. § 44704(a) (outlining requirements for type certificates).

[8] Airworthiness Certification, FAA (Dec. 6, 2019),

[9] Amended Type Certificate, FAA (Aug. 10, 2011),; FAA Order No. 8110.4C ch. 6, at 87 (Oct. 12, 2005),

[10] Airworthiness Certification, supra note 8.

[11]Campbell, supra note 6.

[12] FAA Order 8100.15A (June 10, 2011),

[13] See 49 U.S.C. § 44702(d).

[14] Press Release, Boeing, Boeing 737 MAX 8 Earns FAA Certification (Mar. 9, 2017),; Firdaus Hashim, Malindo Operates World’s First 737 Max Flight, Flight Global (May 22, 2017),

[15] Andreas Spaeth, Onboard Lufthansa’s First Airbus A320neo Flight, Airways Magazine (Jan. 25, 2016),

[16] Staff of H. Comm. on Trans. and Infrastructure, 116th Cong., The Design, Development, & Certification of the Boeing 737 MAX 12–14 (2020),

[17] See id. at 43–45.

[18] 14 C.F.R. § 21.19 (2020).

[19] 14 C.F.R. § 21.101 (2020); see Joint Auths. Tech. Rev., Boeing 737 MAX Flight Control System Observations, Findings, and Recommendations 6–11 (2019) (referring to the applicable sections of the C.F.R. as the Changed Product Rule).

[20] 14 C.F.R. §21.101(b)(1); FAA Order 8110.48A, at 4-2 (July 21, 2017),

[21] FAA Advisory Circular 21.101-1B appx. A. (Mar. 11, 2016)

[22] Joint Auths. Tech. Rev., supra note 19, at 7.

[23] Id. at 26. A description of the system implicated in the two mishaps exceeds the scope of this discussion.  However, for a brief, non-technical overview of the Maneuvering Characteristics Augmentation System (MCAS) identified by the FAA as the common cause of the Lion Air and Ethiopian Airlines accidents, its intended function, interaction with pilot inputs, and its effects on flight characteristics, see Campbell, supra note 6.

[24] Staff of H. Comm. on Trans. and Infrastructure, supra note 16, at 103; Jack Nicas et al., Boeing Built Deadly Assumptions in 737 Max, Blind to a Late Design Change, N.Y. Times (June 1, 2019), (noting that when initially designed, MCAS could only move the stabilizer approximately 0.6 degrees, but when certified, MCAS could move the stabilizer up to 2.5 degrees).

[25] Joint Auths. Tech. Rev., supra note 19, at 13–14.

[26] Id. at 13–14, 23–24.

[27] Joint Auths. Tech. Rev., supra note 19, at VII (noting that the act of delegating testing and evaluation to industry representatives is a well-established practice for the majority of civil aviation administrative bodies around the world).

[28] Id. at VII; Staff of H. Comm. on Trans. and Infrastructure, supra note 16, at 56–84 (discussing FAA oversight of the certification process and delegation of authority to Boeing).

[29] Aircraft Certification Reform and Accountability Act, H.R. 8408, 116th Cong. § 18(b)(3) (2020).

[30] H.R. 8408 § 18(b)(2) (2020).

[31] FAA, Summary of the FAA’s Review of the Boeing 737 MAX: Return to Service of the Boeing 737 MAX Aircraft 75 (2020),

[32] H.R. 8408 § 18(b) (2020) (setting a deadline of 18 months after enactment for the FAA to submit a report to Congress regarding amended type certificates, and 24 months to improve the process of issuing amended type certificates).

Post Image: Undelivered Boeing 737 MAX aircraft that were grounded by aviation agencies, seen at parking lot at Boeing Field in Seattle, Washington, in April 2019. Via Wikimedia Commons.          



By: Mikhail Petrov

On July 1, 2015, in the civil case of Pryor v. United Air Lines, Inc., the Fourth Circuit issued a published opinion vacating the decision of the United States District Court for the Eastern District of Virginia and remanding the case for further proceedings. The case concerned the question of when an employer may be held liable for a hostile work environment created by an anonymous actor. The Fourth Circuit determined that Plaintiff, United Airlines Employee Renee Pryor (“Pryor”), presented enough evidence that a reasonable jury could find that her Employer, Defendant United Airlines, Inc. (“United”), had not done enough to protect her from racially motivated death threats. The Fourth Circuit found that the District Court failed to view the evidence of the case in light most favorable to Pryor.

The Racial Threats

Pryor, an African-American employee of United Airlines was stationed at Dulles International Airport. In January 2011, Pryor discovered a note in her company mailbox declaring that the holder was “licensed to hunt and kill N***** during the open search thereof in the US.” The note was titled “N***** Tag – Federal N***** Hunting License.” There was also a hand drawn image of a person hanging from a pole. The mailbox was located in a secure area only accessible to United employees and others with company authorization.

Pryor was shaken and afraid. She went to her supervisor, but he said he was “sorry” and there was “not much” United could do as there were no security cameras in the mail room. He gave Pryor a form to fill out and said he would alert security and the base manager. He did not, however, file with United’s Employee Service Center (“ESC”) as prescribed in United’s Harassment and Discrimination (“H&D”) policy. Pryor’s supervisor went on to notify the base manager, who notified another manager, who in turn, notified the next one. No United manager filed with the ESC as prescribed by the H&D policy. Management also knew that this was not the first racist incident that happened at United. A year before the note in Pryor’s mailbox, rumors surfaced that African-American flight attendants moonlighted as prostitutes during layovers in Kuwait. Additionally, racist apartment advertisements were left in the flight attendants’ break room. Management never fully investigated who was behind these incidents.

Later, Pryor herself reported a complaint to the ESC. Additionally, she contacted the police, something no one at United had done. When the police did arrive, Pryor’s managers were reluctant to speak about the incident, even after the police explained that a racial note was a race crime in Virginia. It took United management two and a half months to send out a must read email regarding the racial harassment.

On October 21, 2011, Pryor and many other African-American employees at Dulles received a nearly identical racist note in their mailboxes. Pryor went to a supervisor, who in turn ignored her. Pryor then went to the police and filed a report. Additionally, Pryor herself notified the ESC and corporate security. Afterwards, the director of human resources at Dulles agreed to conduct an investigation. Although the director was aided in his investigation by the police, the anonymous harasser was not found.

On March 9, 2012, Pryor filed with the EEOC alleging that United failed to investigate the prostitution rumors and racist notes left in the mailboxes, and that the failure constituted discrimination. Pryor alleged that United created a hostile work environment based on the speculation regarding the prostitution ring and the two notes received. The district court granted summary judgment in favor of United because, although the racist notes were sufficiently severe, the conduct could not be imputed to United.

The Rule of the Case

Pryor alleged that she was subject to a racially hostile work environment in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The elements an employee must prove are the same under either provision. To survive summary judgment, Pryor must show that a reasonable jury could find the conduct alleged was (1) unwelcome; (2) based on her race; (3) sufficiently severe or pervasive to alter the condition of her employment and to create an abusive work environment; and (4) imputable to her employer. Okoli v. City of Baltimore, 648 F.3d 216, 220. (4th Cir. 2011). Elements (1) and (2) are not in dispute. The Fourth Circuit agreed with the district court that element (3) is met. Therefore, the Fourth Circuit re-examined the district court’s decision on element (4) of whether the harassment is imputable on the employer.

The Reasoning of the Fourth Circuit

The question in this case is whether United is liable for the anonymous harassing conduct. On one hand, employers are not strictly liable for acts of harassment that occur in the workplace. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (employer not strictly liable for workplace harassment). On the other hand, the employer maintains a responsibility to reasonably carry out those dual duties of investigation and protection. Thus, the rule is that an employer may be liable for a hostile environment created by third parties “if it knew or should have known about the harassment and failed to take effective action to stop it … by responding with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008) (employer charged with investigation of harassment and protection of employee). In a case of an anonymous harasser, the threats may heighten what is required of the employer, particularly when the harassment occurs in a closed space accessible only to those that the company authorizes.

Here, Pryor agrees that United’s response to the second threat was adequate. However, it is the first threat that is in question here. United agreed that the threat to Pryor was death, and therefore very serious. The only question is whether United’s response to the first threat was reasonably calculated to end the harassment. A reasonable jury could find that United was neither prompt nor reasonably calculated to end the harassment. In answering the first threat, United did not call the police, report the matter to the ESC, inform corporate security, install cameras, provide Pryor with additional security, or conduct forensics on the note. In short, the Fourth Circuit concluded that a reasonable jury could find that United did little to deter future acts of harassment, particularly because additional acts of harassment did happen. The district court erred by granting summary judgement on this element.

The Fourth Circuit Remanded for Further Proceedings

The Fourth Circuit vacated the district court’s grant of summary judgment to United and remanded it for further proceeding consistent with this opinion. The Court found that a reasonable jury could conclude that the response United chose was neither prompt nor reasonably calculated. Therefore, the creation of an abusive work environment could be imputable to the employer, United Airlines.