Sexual Harassment/Hostile Work Environment Offender Not Entitled to Reinstatement Under Collective Bargaining Agreement

In Phillips v. Manhattan & Bronx Surface Transit Operating Auth., 15 N.Y.S.3d 331 (N.Y. App. Div. 2015), the Appellate Division, First Department  held that an arbitration award reinstating a sexual harassment offender (and union member) to his position pursuant to a Collective Bargaining Agreement was contrary to public policy.

In sum, after a female bus dispatcher accused a Transit Authority bus operator (and union official), Aiken, of sexual harassment, the TA’s Office of Equal Employment Opportunity (EEO) found reasonable cause to believe that the operator subjected the complainant to sexual harassment in violation of its sexual harassment policy, and recommended that the TA take “appropriate corrective action.” Aiken had been placed on union-paid release time before the TA presented disciplinary charges against him. An arbitrator determined that the TA “violated the [Collective Bargaining Agreement] by seeking to impose discipline on Aiken while he was on approved Union paid release time.” The arbitrator found that Aiken should be reinstated, and the Union commenced an Article 75 proceeding seeking an order confirming that award, which the Supreme Court granted. The First Department reverses.

The court addressed the question of “whether it was a violation of public policy for the arbitrator to interpret the CBA’s approved union-paid release time as a shield for an employee to prevent the Transit Authority from fulfilling its obligation to prevent and sanction sexual harassment in the workplace.”

The court found “it necessary to intervene under the second prong of the public policy exception because the arbitrator construed the CBA and fashioned a remedy in a manner that conflicts with a well-defined and dominant public policy”, noting that “[t]he public policy against sexual harassment in the workplace is well recognized.”

After outlining sexual harassment law, the court applied the law to the facts as follows:

In this case, the bus driver was accused by his coworker, a bus dispatcher, of serious harassment charges that “created an uncomfortable and hostile work environment for [the dispatcher] and other female employees . . . [and] adversely affected their ability to perform their jobs by making frequent unwelcome, and/or inappropriate comments of a sexual nature to them.” These allegations, which the Transit Authority considered serious enough to require Aiken’s termination, have gone unchallenged. Aiken did not appear at the Disciplinary Grievance Hearing to confront his accuser and to refute the allegations. Instead, the Union appealed the disciplinary determination through the Contract Interpretation Grievance process which ultimately resulted in the arbitrator agreeing with the Union that the Transit Authority violated the CBA by seeking to impose discipline on Aiken while he was on approved Union paid release time at the time the termination was imposed.

We cannot turn a blind eye to the fact that this interpretation of the CBA and the concomitant remedy of reinstatement conflicts with the sexual harassment policy. Because Title VII is designed to encourage the creation of anti-harassment policies and effective complaint mechanisms for reporting harassing conduct, an employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking under federal law, and appropriate corrective action is required following such investigation (see Mulvihill v Top—Flite Golf Co., 335 F3d 15, 21 [1st Cir 2003]). Yet, by ordering reinstatement on the basis of the CBA’s approved union-paid release time, the Arbitrator effectively precludes the Transit Authority from following its policy and thereby satisfying its legal obligations to protect against sexual harassment in the workplace. If forced to honor the arbitration award, the Transit Authority will not be complying with Title VII and the New York State and New York City Human Rights Law, each of which requires that an employer impose appropriate discipline for proven cases of sexual harassment in order to ensure a safe work environment free of sexual harassment.

Accordingly, this is one of the relatively rare cases where a CBA award — reinstating a sexual harassment offender — runs counter to the strong public policy against sexual harassment in the workplace. If left to stand, the arbitration award will send the wrong message — that certain employees at the Transit Authority, mainly those who also performed union—related activities, may be free to create a sexually-charged atmosphere in the Transit Authority’s workplaces because any complaints against them will be impeded by CBA protections. Knowing that complaints against employees like Aiken will be impeded by CBA protections, victims of sexual harassment may hesitate to come forward to report opprobrious behavior, thereby undermining the Transit Authority’s ability to promptly remedy such behavior. It is also [*5]imperative that employers have the unfettered ability to discipline employees such as Aiken in order to both punish the offender and to deter other employees from engaging in such behavior.

The court was careful to note, however, that

we do not exceed our narrow power to review an arbitrator’s findings of fact or his interpretation of the meaning of the CBA’s provisions. Moreover, we do not substitute judicial opinion for the Arbitrator’s decision in contravention of the parties’ CBA. We do not rule on either the merits of the underlying allegations or impose a remedy we feel is appropriate; we simply vacate the award as violative of public policy.

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