Arbitrating Sex Discrimination Grievances

By Vern E. Hauck | Go to book overview

Chapter 5
Employment Conditions

Employment conditions deal with alleged gender discrimination faced by workers who already hold a job, are not being disciplined or laid off, and are not challenging hiring bias. Claims of gender discrimination in transfer, promotion, seniority, training, and job assignment are examples of disputes falling into the employment conditions category.


EXTERNAL LAW

The relationship between external law and arbitral practice has been analyzed extensively in Chapter 2. While Title VII outlaws sex discrimination, it is not always clear just what actions are in violation of the statute. This lack of judicial clarity is particularly true in instances where the courts are asked to consider a unique question of law being raised under Title VII for the first time. Nevertheless, under the guise of interpreting Section 301 of the Taft-Hartley Act, the Supreme Court created rules pertaining to the authority of arbitrators.

Briefly, it is generally conceded that the authority of an arbitrator stems from the collective bargaining agreement, and courts should not question arbitrators authorized to interpret the agreement. But when the agreement does not provide guidance or when external law is unclear or conflicts with the agreement, the authority of the arbitrator is less certain and the Steelworkers Trilogy provides limited judicial guidance. The Gardner-Denver1, decision by the Supreme Court provides a partial answer to questions raised about the relationship between external law and arbitration.2 Per Gardner-Denver, the arbitrator is required, as called for in Steelworkers, to follow the terms of the agreement and not external law. Thus, if there is conflict between the contract and external law, the arbi-

____________________
1
Alexander v. Gardner-Denver, 7 FEP 81, 415 U.S. 987 ( 1971).
2
Strozier v. General Motors Corporation, 24 FEP 1370, 635 F.2d 424 ( 1981).

-91-

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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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