Just Cause in the Arbitration of Sexual Harassment Cases: An Exploration of the Ways in Which Arbitrators have Reached Decisions in Sexual Harassment Cases - Dispute Resolution Journal - Vol. 60, No. 4

Mollie H. Bowers is an internationally recognized labor arbitrator and mediator. She is a professor at the Merrick School of Business at the University of Baltimore, where her specialties are negotiations, managing workplace conflict, arbitration, and human resource management. She is a past president of the International Society of Professionals in Dispute Resolution.

Sue Reddick is an associate with Conflict Management Consultants. She has a master’s degree in administration and has done additional graduate study in human resource management and labor relations. She has extensive experience as both chief advocate and team member in negotiations, mediations, and arbitrations.

Patrick McDermott is an assistant professor of Management at the Franklin P. Perdue School of Business at Salisbury State University. He has served as labor relations counsel at Pan American World Airways and ABC, lnc., a division of The Walt Disney Company. He has also represented management in all areas of employment litigation and has extensive first chair arbitration experience.

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Originally from Dispute Resolution Journal

The National Academy of Arbitrators (NAA), at its annual meeting in June 2000, discussed whether just cause principles still apply in sexual harassment cases. Based upon our analysis of arbitral sexual harassment cases published in the last five years in Labor Arbitration Reports1 and in Labor Arbitration Awards,2 our answer is “yes.”

The published awards show some interesting dichotomies in how arbitrators view the relationship between conduct and the appropriate penalty. For example, awards reveal the following offense-penalty pattern:3

Offense:                               Penalty:
Obscene                              Discharge
Vulgar                                   Suspension
Foreplay                             Unforgivable
Horseplay                            Forgivable
Touching                          Discharge
Verbal/Visual Abuse          Suspension

It can be argued that these arbitral dichotomies are consistent with the way federal courts define what constitutes severe or pervasive conduct that alters the terms and conditions of another person’s employment. Where arbitrators encounter conduct that they consider either severe or pervasive, the tendency appears to be to uphold the employer discipline, including termination. Conversely, where less offensive conduct occurred—for example, sexual harassment that would not be considered severe or pervasive under federal law—arbitrators appear to review the discipline more closely, giving attention to the array of procedural and substantive issues for just cause. This approach establishes a two-tier process of arbitral decision-making that parallels court determinations about whether a severe or pervasive hostile environment sufficient to prove illegal conduct under Title VII exists.4 Thus, the threshold determination in the cases is the severity and/or pervasiveness of the conduct at issue.

For this discussion we will refer to those cases where arbitrators find either quid pro quo or severe or pervasive conduct that is so offensive as to alter a victim’s terms and conditions of employment, as Type I cases. Type II will refer to those cases that involve only charges relating to creation of a hostile work involvement that does not rise to the level that could constitute a violation of Title VII.