Commentary: Just because United Airlines HAD the right doesn't mean they WERE right

Let's stipulate for a moment that United Airlines almost certainly had the legal right to remove Dr. David Dao from their plane for any reason whatsoever, even though he had already paid for the ticket and taken his seat. Let's further stipulate that, once Dao refused to leave his seat after being ordered to do so by flight attendants, they had the right to call in Chicago Department of Aviation officers to remove Dao from the plane, using physical force if necessary. We will stipulate all those things, because they are almost certainly true — as a lawyer, I once had to research possible causes of action against an airline and the basic gist of my research was that airlines are more or less legally allowed to do to you whatever they want.

Many commentators are defending United on exactly this basis: That United was acting within their legal rights. I am at a total loss as to why, for some people, the analysis of whether United was right — either morally or from a customer service standpoint — ends with whether they had the right to act as they did.

Let me draw an analogy to another kind of business and see if the logic that is currently being used by some to defend United would hold water in another context.

The Chick-fil-A that is closest to my house is insanely busy. At meal times in particular, the line of cars wraps around the building twice, and finding a seat inside can be challenging. More than once I have gone in, intending to sit down and eat (I don't like to eat in my car), only to realize that no seat is available. In these situations, I always end up grudgingly accepting a to go bag and accepting the presence of food crumbs in my car. If I happen to find an open spot, I feel fortunate to be able to sit down for a minute and enjoy a delicious chicken sandwich.

Now, how would you feel if footage emerged from my local Chick-fil-A showing four store employees walking up to some seated paying customers and demanding that they leave their table so that store employees could sit down on their lunch break? Imagine further that on the video, when the customers refused, the police were immediately called and the offending patrons were forcibly dragged out of their seat and the restaurant?

Before you answer, consider that Chick-fil-A would be totally within their rights to do so. As long as the patrons in question were not singled out on the basis of race, gender or any other protected class, and were truly selected at random, Chick-fil-A would probably be allowed to kick people out of their establishment for any reason they want, including to give their employees space to take a break. And case law is very clear that once store employees tell a patron (even a paying patron) to leave, if the patron fails to do so he is trespassing and the police may be called to remove him and arrest him for trespass. So, based on the fact that it would be legal for Chick-fil-A to do so, you wouldn't think any less of Chick-fil-A if they did it, right?

Wrong, of course. Regardless of the legality of their actions, public outrage would demand that the employees involved, as well as their manager, be fired, and if the CEO of Chick-fil-A released two separate statements defending the actions of his employees, even the most loyal Chick-fil-A patron would think twice about eating there in the future.

The reason for that is simple: What we are dealing with and examining here is whether United Airlines deserves to suffer free market consequences for displaying appallingly bad judgment and reprehensible customer service. The legal issue is a total and complete red herring; no one (or at least almost no one) is suggesting that the United employees or their CEO should go to jail, after all. The discussion in question is very simply whether people want to continue voluntarily spending their money with an airline that treats its customers this way.

Of course, the reason that the hypothetical Chick-fil-A scenario feels different is that Chick-fil-A, as a company, treats its customers well enough that most of us feel like we have the right to sit down and eat a meal inside their establishment if we've paid for some food there (provided there is available room), even though that's not technically true. We feel that way because before any set of four Chick-fil-A employees — even the lowliest, greenest teenagers — decided to go commandeer a table from paying customers, their training would kick in and they would go consult their manager about whether this was appropriate behavior. Their manager would presumably immediately find literally any other solution to the employee break problem and the situation would never happen in the first place. Nor, for that matter, is Chick-fil-A unique in this regard (although their customer service is outstanding, for a fast food restaurant) — we would not contemplate this happening to us at McDonald's, Burger King, Kentucky Fried Chicken, wherever. In fact, if we were approached by a fast food employee  while we were eating and asked to give up our seat, we might well (erroneously) exclaim, "Hey, I'm a paying customer, I have a right to sit here!"

Now contrast this with what happened on that fateful United flight. When the gate crew was approached and informed that four United employees needed to board an already full flight, any employees who had been decently trained by a company that gave a rip about customer service would have immediately had some huge alarm bells go off in their head.

"Do you mean to say that you are going to go on that plane and actually yank customers off of it?" they would have asked.

And when they received "Yes" for an answer, they would have immediately gotten on the phone and started kicking the situation upstairs through their supervisory chain in order to get clearance to resolve this situation in some other way. We know now that gate agents are limited in their authority to offer money for tickets — in this case, they were limited to a maximum offer of $1,350 — but that doesn't mean that everyone in the whole company is so limited, and they should have kept going until they found someone with the authority to offer as much as it took.

They further should have gotten on the phone with the other airlines and tried to find other solutions for either their crew or their passengers; solutions that did not involve waiting until 2pm the next day for a flight. Airlines have courtesy arrangements with each other to cover these exact scenarios, as anyone who has dealt with either a travel emergency or a canceled flight knows. The idea that they could not have found an alternate flight on another airline — either for the passengers they were booting or (preferably) for the crew — flying out of one of the busiest airports in the entire world, is ludicrous.  The messaging should have at the very least included, "if you give up your seat on this flight, we will put you on a Delta flight that leaves two hours from now, at no additional cost, as well as give you a voucher."

That's to say nothing of that fact that in any other service industry, removing paying customers from a seat for the convenience of employees would be flat out unthinkable as an opening bid to the scenario.

As far as we can tell from this case, none of these things happened. Incredibly, the flight attendants did not even bother to offer the maximum $1,350 they were allowed to offer for the tickets before selecting four people and telling them they had to leave. And when faced with a person who refused to leave his seat on the stated grounds that he had an important engagement he could not afford to miss, there does not appear to have been any effort to consult company higher ups for guidance or alternate solutions; instead, the immediate answer was, "we have the right to kick this person out, therefore we will."

The fact that this entire episode was allowed to play out in this way is indicative of a company that suffers from systematic indifference to baseline customer service. This impression was solidified by the two completely tone deaf statements issued by United CEO Oscar Munoz defending his employees' actions. These statements indicated that the culture of indifference to customer service goes all the way to the top of the United Airlines food chain. That is what most people are responding to.  That is why people are canceling United tickets, vowing never to fly them again, and why United stock is taking a beating. People don't want to patronize a company with a culture where an incident like this could have even possibly happened, regardless of whether United was within their legal rights to treat Dr. Dao in the way they did.

And no, it is not usual for airlines to send employees on to a full plane and yank passengers off of it to accommodate crew. It is highly unusual. In literally hundreds of domestic flights, I have never seen it happen once. I have seen it happen with relative frequency that customers who believe they have tickets are told at the gate that a flight is overbooked, and this is an infuriating but at least manageable situation (note: I don't think this practice should be allowed, but I digress). An airline sending employees onto a plane to yank paying passengers off, for the stated purpose of replacing them with its own employees? That is not usual, and it should be immediately obvious to any reasonable person that it could create an ugly situation, and United should have ruled out this "solution" to their problem out of hand. The fact that none of these blindingly obvious customer service principles occurred to any of the dozens of United employees who knew that this was happening means that customers should well be wary of patronizing them in the future.

And what of Dr. Dao? Is he, as some have claimed, "at fault" in this situation? I mean, I guess if you are the sort of person who faults a person for peacefully disobeying an unfair/unjust but legal order, then yeah. If, on the other hand, you are of the opinion that peaceful protesters have sometimes acted as necessary catalysts to change unjust systems, then it's a bit harder to make the case. Was Rosa Parks "at fault" for refusing what was, at the time, a lawful order to move to the back of the bus? I guess technically she was in violation of the law, but history sees her action as both moral and just, which strikes me as correct. Dr. Dao obviously was not fighting systemic, codified racism, so I understand that the scenarios are obviously not the same and I do not mean to imply that he is like Rosa Parks. However, we have historically lauded individuals who peacefully stood up for their own sense of fairness against unjust systems, even when the law was arrayed against them.

Personally, I wonder about the sort of person who does not cheer at least a little bit for the Dr. Daos of the world in their heart. Who doesn't understand the basic appeal to fairness of "I paid for this seat, I'm sitting in it quietly, I'm not leaving it until you pay to take me to my destination, especially not because you want to put one of your own employees in it"? Who flies frequently and doesn't chafe at the arrogance of airlines who habitually sell products they don't actually have and who can legally remove you from flights you paid hundreds of dollars for with impunity? What person who flies a "MOLON LABE" flag outside their house doesn't silently pump their fist in support of a guy who says, "If you want this seat back, you're going to have to pull me out of it"? Who isn't at least a little bit glad that Dao's disobedience led to this becoming a national story so that we could have a conversation about the protections the industry enjoys, courtesy of the regulatory agency that is in theory supposed to be regulating them?

When a company treats a customer with such flagrant disregard for basic customer service and fairness — even if they are legally entitled to do so — I'm fine with a customer raising a bit of a ruckus. Or, as Dr. Dao did, peacefully refusing to comply, knowing that doing so would likely lead to greater awareness on the part of the public of how this company treats customers.

And I'm especially fine with people who say they will never fly United again, not because they believe United acted illegally, but because they believe United acted like a company that treats its customers as a nuisance rather than as a reason for its existence.

Just because United had the right to remove Dr. Dao from that plane doesn't mean they were right to do so.