Wednesday, September 5, 2012

Benchslap: Reinstating Sexual Harasser is "Absurd"

The Supreme Court of Pennsylvania dished out a benchslap to an arbitrator who reinstated a sexual harasser under the terms of a Collective Bargaining Agreement (CBA). The case is Phila. Housing Authority v. AFSCME. The allegations contain adult content, so earmuffs kids (am I the only one who still quotes Old School ad nauseum?):
Broadnax testified about Mitchell’s numerous sexually explicit comments and actions toward her, which began in 2001 and continued into 2002. She described acts of inappropriate touching and sexual comments made by Mitchell, which caused her discomfort, particularly when she and Mitchell were alone. She described one particularly egregious incident where Mitchell grabbed Broadnax from behind while she was filing paperwork, “grinding” himself into her for approximately 15 seconds. Another incident involved Mitchell hiding under a desk to “take a nap” and then asking Broadnax if he could “eat her pussy” while she worked. Mitchell would hug Broadnax, throw his arms around her neck, and “play with himself” while speaking to her; he made her “upset and nervous.” Broadnax testified that she also witnessed Mitchell pinch the breasts of the other female warehouse employee.
Ummm, yeah, that's generally frowned upon. The employer terminated the harasser, but the case went to arbitration under the CBA pursuant to the Pennsylvania Public Employe Relations Act (PERA, and yes there is only one "E" at the end of employe).

The arbitrator believed the accuser, and found that the harasser engaged in "lewd, lascivious, and extraordinarily perverse" conduct. Astonishingly, the arbitrator then found that the employer did not have "just cause" as required by the CBA because the harasser essentially ceased his perverse conduct after receiving a verbal warning. The award reinstated the employee and awarded him back pay.

The Pennsylvania Supreme Court was having none of that. Noting clear public policy against sexual harassment in the workplace (like Title VII and the PHRA), the Court held:
The absurd award here makes a mockery of the dominant public policy against sexual harassment in the workplace, by rendering public employers powerless to take appropriate actions to vindicate a strong public policy. Such an irrational award undermines clear and dominant public policy.
Tell us how you really feel? Needless to say, the Court vacated the arbitration award.

HT: Eric Meyer via The Employer Handbook.