Arbitrator’s Ruling that, Under the Terms of the Collective Bargaining Agreement, a Bus Driver Could Not Be Disciplined for Sexual Harassment While He Was On Union-Paid “Release Time,” Violated the Public Policy Prohibiting Sexual Harassment in the Workplace

The First Department, in a full-fledged opinion by Justice Renwick, determined the facts of the case presented a rare instance when the arbitrator’s resolution of a matter covered by the collective bargaining agreement (CBA) violated public policy. A bus driver, Aiken, was accused of sexual harassment by a co-worker. Shortly thereafter the union requested of the Transit Authority that Aiken be placed on union-paid “release time” and the Transit Authority did so. The Equal Employment Opportunity Commission (EEOC) found the bus driver had violated the Transit Authority’s sexual harassment policy and recommended corrective action. Aiken did not participate in the disciplinary proceedings (which resulted in Aiken’s termination) on the ground that, under the terms of the CBA, the Transit Authority did not have the authority to impose discipline while he was on union-paid “release time.” An arbitrator ultimately agreed with Aiken and reinstated him. The First Department noted that the arbitrator’s award was supported by the terms of the CBA, but held the award violated the strong public policy prohibiting sexual harassment in the workplace:

The scope of the public policy exception to an arbitrator’s power to resolve disputes is extremely narrow, and courts will only intervene in ” cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator'” … . In other words, under this analysis, we must focus on the result only, and can vacate the award if it intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this State. Moreover, “courts must be able to examine an arbitration … award on its face, without engaging in extended fact finding or legal analysis, and conclude that public policy precludes its enforcement” … . * * *

We … find it nececessary to intervene … because the arbitrator construed the CBA and fashioned a remedy in a manner that conflicts with a well-defined and dominant public policy. The public policy against sexual harassment in the workplace is well recognized. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex (42 USC § 2000e-2[a][1]). The Equal Employment Opportunity Commission (the EEOC), which administers and enforces this provision, has promulgated a guideline that states:

Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when … such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment (29 CFR 1604.11[a][3]).

Moreover, Title VII places upon an employer the responsibility to maintain a workplace environment free of sexual harassment. The EEOC Guidelines make employers liable for sexual harassment between fellow employees of which it knew or should have known, “unless it can show that it took immediate and appropriate corrective action” (29 CFR § 1604.11[d]). The EEOC Guidelines indicate that employers should take all reasonable steps to prevent harassment from occurring in the employment setting, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned (29 CFR § 1604.11[f]). The EEOC Compliance Manual further provides that employers should create a procedure for resolving sexual harassment complaints that encourages victims of sexual harassment to come forward …  “It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation” … .

New York has similar legislation and rules … . Furthermore, the protections afforded employees under the New York City Human Rights Law (NYCHRL) are more expansive than those provided under analogous provisions of Title VII of the Civil Rights Act of 1964… . Matter of Phillips v Manhattan & Bronx Surface Tr. Operating Auth., 2015 NY Slip Op 06564, 1st Dept 8-18-15