Just Cause in the Arbitration of Sexual Harassment Cases

Article excerpt

The following article investigates whether just cause principles still apply in the arbitration of sexual harassment cases. To this end, Mollie Bowers, Sue Reddick, and Patrick McDermott explore the way in which arbitrators have reached conclusions in sexual harassment cases and outline the dichotomies that seem to exist in how arbitrators view the relationship between conduct and the appropriate penalty. Their investigation led them to find that arbitrators who decide sexual harassment cases usually apply "advertently or inadvertently" the "seven tests" of just cause, and therefore such principles do indeed still apply.

The National Academy of Arbitrators (NAA), at its annual meeting in June 2000, discussed whether just cause principles still apply in sexual harassment cases. Based upon our analysis of arbitral sexual harassment cases published in the last five years in Labor Arbitration Reports1 and in Labor Arbitration Awards,2 our answer is "yes."

The published awards show some interesting dichotomies in how arbitrators view the relationship between conduct and the appropriate penalty. For example, awards reveal the following offense-penalty pattern:3

It can be argued that these arbitral dichotomies are consistent with the way federal courts define what constitutes severe or pervasive conduct that alters the terms and conditions of another person's employment. Where arbitrators encounter conduct that they consider either severe or pervasive, the tendency appears to be to uphold the employer discipline, including termination. Conversely, where less offensive conduct occurred-for example, sexual harassment that would not be considered severe or pervasive under federal law-arbitrators appear to review the discipline more closely, giving attention to the array of procedural and substantive issues for just cause. This approach establishes a two-tier process of arbitral decisionmaking that parallels court determinations about whether a severe or pervasive hostile environment sufficient to prove illegal conduct under Title VII exists.4 Thus, the threshold determination in the cases is the severity and/or pervasiveness of the conduct at issue.

For this discussion we will refer to those cases where arbitrators find either quid pro quo or severe or pervasive conduct that is so offensive as to alter a victim's terms and conditions of employment, as Type I cases. Type II will refer to those cases that involve only charges relating to creation of a hostile work involvement that does not rise to the level that could constitute a violation of Title VII.

Our analysis shows that in Type I cases, as in serious workplace violence, theft, or other major transgressions, arbitrators appear not to engage in deep analysis of contextual factors and procedural issues where an employer proves serious misconduct has occurred. Instead, arbitrators generally deal with quid pro quo and such severe or pervasive sexual harassment as a zerosum process; if the allegation is proven, the penalty is upheld.

Our analysis of the Type II cases shows that arbitrators seem to address cases involving an allegations) of creating a hostile work environment in the same or a similar manner to that which they use in addressing just cause for discipline or discharge in other cases. In fact, the arbitral decision-making in such cases appears to follow the "seven tests of just cause" enunciated by arbitrator Carroll Daugherty in 1966.5 The "seven tests" Daugherty found applicable to just cause issues are:

Test 1

Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee's conduct?

Test 2

Was the company's rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company's business and (b) the performance that the company might properly expect of the employee.

Test 3

Did the company, before administering discipline to an employee, make and effort to discover wheather the employee did in fact violate or disobey a rule or an order of management? …