Arbitrating Sex Discrimination Grievances

By Vern E. Hauck | Go to book overview

complaint pursued through the grievance arbitration process in a valid collective bargaining agreement was not barred from seeking remedy under Title VII. According to the Court, Title VII rights and collective bargaining rights are distinctly separate and must be pursued separately. Put another way, the grievant has a legal right to "two bites at the apple." Furthermore, a grievance arbitration proceeding does not "toll" the statute of limitation requirements under Title VII.70

Despite possible double jeopardy, discrimination complaints have been submitted in increasing numbers to labor arbitrators since Gardner-Denver.71 An important explanation of this phenomenon hinges on the law itself. Gardner-Denver establishes that a court may give great weight to an arbitral decision provided the arbitrator gives full consideration to four fundamental relevant factors that should exist if the courts are to give an arbitral decision full consideration.72 These four "relevant factors include the existence of provisions in the collective bargaining agreement that conform substantially with Title VII, the degree of procedural fairness in the arbitral forum, adequacy of the record with respect to the issue of discrimination, and the special competence of particular arbitrators." The challenge faced by the parties and labor arbitrators wishing to make the grievance process viable is how best to satisfy the requirements of Footnote 21 in Gardner-Denver while at the same time seeking to avoid an improper interpretation of the labor agreement.


SUMMARY

Whether labor arbitrators should decide discrimination complaints is probably academic. Over the years opponents have often argued that labor arbitrators are not qualified, that the possibility of judicial review of an award erodes the institution of arbitration, and that discrimination awards are biased against the grievant. Proponents point out that many labor arbitrators are qualified, that arbitration is sensitive to the parties' needs, and that arbitration has actually supported the judicial system, saving the parties both time and money, and that on balance he benefits of arbitrating discrimination cases outweigh the costs. Practically speaking, the task faced by the parties is how best to achieve the just requirements of Gardner-Denver when a discrimination complaint arises. For regardless of which position is taken, the fact remains that discrimination complaints have existed and been submitted in increasing numbers to labor arbitrators since the closing days of World War II.

____________________
70
Electrical Workers, Local 790 v. Robbins & Myers, Inc., 13 FEP 1813 ( 1976).
71
Staff, Labor Arbitration Reports, Cumulative Digest and Index. Washington, D.C.: Bureau of National Affairs, Inc., Sections 106 and 107, all volumes.
72
Stozier v. General Motors Corp., 635 F2d 424 ( 1981).

-18-

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Arbitrating Sex Discrimination Grievances
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • Acknowledgments xi
  • Abbreviations xiii
  • PART I - FOUNDATION AND FUNDAMENTALS 1
  • Chapter 1 - Legal and Arbitral Foundations 18
  • Chapter 2 - Blending Law and Arbitral Practice 32
  • Chapter 3 - Procedure, Evidence, and Proof 49
  • PART II - TOPICAL ISSUES 51
  • Chapter 4 - Employment Status 53
  • Chapter 5 - Employment Conditions 91
  • Chapter 6 - Sexual Harassment 147
  • Chapter 7 - Pregnancy and Childbearing 165
  • Bibliography 179
  • Index 183
  • About the Author 193
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