Sexual Harassment, Arbitrators and Vacated Awards - Essay Example

Such awards reinstating the accused are likely to be vacated if a company has an express sexual harassment policy or on the basis of legal and social norms. In Stroehmann Bakeries, Inc. v. Local 7761, the accused was discharged by Stroehmann for violating the rule prohibiting immoral conduct after the employee of a customer alleged that he had touched her breast, pushed himself against her and made sexually explicit remarks. The arbitrator ruled that the company's investigation into this incident was insufficient.

The 3rd Circuit Court vacated the award, stating that "[t]here is a well-defined and dominant public policy concerning sexual harassment in the workplace which can be ascertained by reference to law and legal precedent." The court also pointed out that the arbitration award would have affected the employer's ability to prevent sexual harassment2. Although the courts upheld termination of employment where sexual harassment was claimed, these decisions do not require employers to terminate an accused harasser in all instances.

The employer must determine whether the harassment occurred and then its response must be calculated to prevent further harassment, given the particular facts and circumstances at the time. If the termination results in a grievance, the arbitrator has to determine whether the termination is supported by just cause. Part of these considerations is to determine the relief, if any, in a case.The public policy exception to enforcement of labor arbitration awards arises when an award reinstates a previously discharged individual.

The usual standard for discipline and discharge in labor cases is just cause, which does not have a precise meaning and the arbitrator has to decide on a case to case basis. Therefore, it seems inappropriate for a court to set aside an arbitral decision reinstating a grievant merely on the grounds that it does not agree with the arbitrator's assessment that just cause was lacking. On the other hand, the Supreme Court has recognized the public policy exception; hence courts have a right to apply it under appropriate circumstances.

Although the Supreme Court has not specified as to what kind of award violates public policy, it has said that public policy is to be ascertained by reference to laws and legal precedents. Further, it has acknowledged that the public policy exception is narrow and therefore for an order to be vacated on these grounds, the award must violate a specific law or court decision and the occurrence of such a violation is to be determined only by the courts. Clearly, arbitrators possess no independent powers beyond what the parties confer on them through their contracts and the Courts in general, have allowed arbitrators to make crucial inferences regarding the possible future conduct of grievants when they determine their awards.

The court's assessment of whether public policy was violated by an arbitration award has at times been based on these inferences. The Labor law policy favors disputes going to arbitration and the Collective Bargaining Agreement or CBAs usually authorize arbitrators to reinstate employees. The courts, in general, have held that a public policy collision occurs only if positive law explicitly prevents reinstatement. However, the Supreme Cour