Arbitrating Sex Discrimination Grievances

By Vern E. Hauck | Go to book overview

arbitrator's dominant concern for equity in human rights grievances stems from the law, sensitivity to the existence of employment discrimination at places of work, and the parties' preference for fair play. Notwithstanding, the application of historically familiar arbitral decision making criteria to civil rights grievances is a fact of life.


SUMMARY

Statistical support exists for the contention that labor arbitrators reach conclusions about discrimination complaints based largely on interpretative decision rules traditionally used to decide questions such as seniority, discharge, and promotion. The cases analyzed in this chapter indicate that some evolving arbitral decision rules are applied more often than others but that arbitrators do not have a single predictable rule or set of rules which can be followed to decide discrimination grievances. The intent of the parties, burden of proof, specific versus general contract language, reasonable and prudent, and interpretation in light of the law were among the evolving contract interpretations rules most frequently mentioned by arbitrators to justify their discrimination awards. Among other things, the present findings indicate that discrimination grievances will typically involve the labor arbitrator with considerable ambiguity, parole evidence, and the interpretation of contract terms rather than civil rights law. Concern for the wisdom of arbitrators deciding discrimination grievances pales beside the cases examined in this chapter. Almost all arbitration awards comply with the four relevant facts in Gardner-Denver's Footnote 21. First, the majority of awards reviewed included references to antidiscrimination provisions in the applicable labor contract. Second, though shaky, the evidence in the awards suggests the existence of a more than adequate degree of procedural fairness. Indeed, procedural adequacy may prove to be of secondary concern since justice under civil rights law is a normal by-product of arbitral conclusions. Third, discrimination was discussed in every award reviewed, usually in the parties' positions and less frequently in the arbitrator's opinion. Finally, the results of an overwhelming majority of awards reviewed are in compliance with Title VII, documenting the competence of particular arbitrators to determine discrimination questions.

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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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