How Arbitrators Address Sexual Harassment Cases
Owens, Stephen D., Journal of Legal, Ethical and Regulatory Issues
SEXUAL HARASSMENT AND PUBLIC POLICY
Sexual harassment has become a pervasive problem in the American workplace--especially over the past ten years. Certainly the drama of the Clarence Thomas-Anita Hill dispute was "enough to enrage the most passive women and make even liberated men squirm" (Crow & Koen). Sexual harassment occurs in all types of private and public sector workplaces. On-the-job sexual harassment, if left unchecked, is counterproductive to organizational effectiveness and places psychological, social, and economic stress on employee victims.
Two distinct forms of sexual harassment are now recognized by the Equal Employment Opportunity Commission and the courts: quid pro quo and hostile environment. Quid pro quo sexual harassment is more easily identified and involves demands for sexual favors in return for a promotion, higher pay, or some other employment benefit. Quid pro quo cases rarely, if ever, occur in the arbitral forum because it is the supervisor who is usually charged with sexual harassment.
Hostile environment cases, however, are much more likely to be decided by arbitrators. Such cases usually involve a male employee who has been disciplined for harassing a female co-worker. He then protests the fairness of the discipline under the "just cause" provision of the labor agreement. In its Vinson decision in 1986, the Supreme Court applied Title VII to workplace sexual harassment by stating that the existence of a hostile working environment is a form of sexual harassment and falls under the purview of Title VII. Crow and Koen conclude from Vinson that a complaint of hostile environment must show that the conduct was "(1) sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment and (2) unwelcome" (Crow & Koen, 6).
A key question left unanswered from Vinson, however, concerns the criteria to be used to determine whether conduct was unwelcome and sufficiently pervasive to amount to sexual harassment. That question was addressed in 1993 by the Supreme Court in Harris v. Forklift Systems (114 S.Ct. 67). The Court held that a plaintiff need not show severe psychological injury to prevail in a sexual harassment case. The Court's ruling expanded the application of sexual harassment to incidents where a hostile work environment has a deliterious affect on one's job performance--without showing any commensurate adverse psychological or physiological impact.
In its decision in Harris, the court clarified and expanded the definition of a discriminatory "abusive work environment" under Title VII. The decision should provide guidance to labor, management, industrial relations practitioners, and third-party neutrals as they grapple with workplace sexual harassment.
QUESTIONS AND ISSUES FOR ARBITRATORS
The use of labor arbitration as a mechanism for settling workplace disputes is by now a well accepted practice in the industrial relations system. In one of the three landmark cases in the Steelworkers Trilogy (363 U.S. 574,583), the court said that national labor policy should favor resolution of workplace grievances through arbitration because of an arbitrator's knowledge of the parties' needs and the "common law of the shop." However, the so-called "common law of the shop" has now expanded to include a complex array of new workplace issues. With the growing body of reported arbitration decisions involving sexual harassment issues, various important substantive and evidentiary issues have become apparent. Issues such as the nature of the grievances, quantum of proof, and remedies are particularly noteworthy.
Nature of Grievances
The most straightforward and common grievance occurs when the accused harasser who has received discipline grieves under the just-cause doctrine of the agreement. In the typical case the accused, not the victim, brings the grievance; the victim is most likely a fellow member of the collective bargaining unit. …