Public employees accused of sexual harassment are protected by a grievance and arbitration process that can save them from losing their jobs.
But in a ruling by the Connecticut Supreme Court, justices made two points perfectly clear. First, the court affirmed there is such a strong public policy against on the job sexual misconduct “that is highly egregious,” that it may require nothing short of firing an individual who violates such policy.
And second, the court showed arbitration awards are in no way immune from being overturned. That was what Jonathan B. Orleans, an employment law litigator with Pullman & Comley found most interesting about the majority decision in State of Connecticut v. AFSCME, Council 4, Local 391.
The justices affirmed an earlier state Appellate Court ruling, saying a corrections officer had committed such egregious acts that he had to be fired. The decision vacated an earlier arbitration award in the officer’s favor, which had found he was entitled to keep his job.
Orleans, who was not involved with the case but was familiar with the facts, said it is rare for the courts to overturn an arbitration decision. “There is this body of law where the courts have said over and over, how strongly we favor arbitration as a way of resolving disputes,” Orleans said. “As a result, the court has to do this contortionist’s dance when it wants to overturn an arbitration decision.”
Most who were familiar with the case said there was no dispute that the conduct of the officer constituted harassing behavior “over a substantial period of time.”
The officer, Scott Gamache, started working for the state as a corrections officer in 1999. In 2005, he was accused of sexually harassing a co-worker.
Following an internal investigation, Gamache was initially terminated, but he filed a grievance and his employment was reinstated after an arbitration hearing. The state of Connecticut appealed that ruling, which was overturned by the Appellate court, leading to a review by the Connecticut Supreme Court.
J. William Gagne, an employee benefits lawyer from West Hartford, who represented the union that Gamache belonged to, argued that Gamache had been an exceptional employee of the state. He said the investigationof sexual harassment was flawed and that others who had committed worse offenses were not terminated.
Gagne further argued that the state did not have a well-defined public policy against sexual harassment in the workplace, and even if it did, “the arbitrators decision to reinstate” Gamache did not violate that policy.
But the appellate court found there was a “clearly defined and dominant policy against sexual harassmentand the officer knew about it, adding, “anything less than termination would be insufficient to uphold the important public policy against workplace sexual harassment.”
In its decision handed down August 1, the majority of the Supreme Court agreed. “The parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement,” Justice Chase Rogers wrote in the majority opinion, “any more than parties can expect a court to enforce such a contract between them.”
“A Strong Policy”
The Attorney General’s Office, which represented the state in the case led by Assistant Attorney General Thomas P. Clifford III represented the state in its case challenging the arbitration ruling.
“As a matter of public policy, this is a very important decision that has significant implications for state agencies,” Attorney General George Jepsen said. “Sexual harassment can create a hostile work environment not only for the victimized individual, but also for other employees.”
He said the decision will serve as an example to other public offices that sexual harassment will not be tolerated. “As an employer, state agencies through their commissioners and supervisory staff have a legitimate interest and responsibility to ensure a safe, respectful and orderly work environment,” Jepsen said. “The court’s decision ensures that individuals who knowingly engage in inappropriate behavior can be removed from the work environments when all attempts to remedy the situation fail.”
In a lengthy dissent, Justice Dennis G. Eveleigh wrote that he agreed the state “has a strong policy against sexual harassment in the workplace.”
But in differing from the majority, Eveleigh found there was “no evidence in either our statutes or case law” to suggest public policy mandates a termination of employment in every instance in which there is a factual finding of sexual harassment.
Eveleigh in the dissenting opinion also shared his thoughts on overturning an arbitration decision. “I also respectfully suggest that another strong public policy must be considered in this matter,” Eveleigh wrote. “It is the public policy of this state to encourage employees to bargain with their employers so that both parties may enter into collective bargaining agreements regarding the parameters of the working conditions and benefits.
When disputes between employers and employees arise, the courts prefer cases to be resolved through arbitration.
Eveleigh went on to say that the U.S. Supreme Court has also set limits on the involvement of courts in reviewing arbitration awards. “A court is not free to overrule an arbitration decision simply because the court believes its own interpretation of the contract would be a better one,” he wrote.
Employment lawyers said the decision will likely raise some questions about what constitutes “highly egregious and incorrigible misconduct.”
“This is a subjective standard subject to interpretation,” said Nick Zaino, who is chair of the Connecticut Bar Association’s Labor and Employment Section. “However, the Court’s decision underscores and emphasizes the strong public policy against unlawful harassment in the workplace. It sends a strong message to employers and employees that egregious acts of harassment in the workplace will not be tolerated and in some cases requires nothing less than termination of employment.”
Zaino said the decision could compel employers to take more aggressive disciplinary actions against employees who engage in harassment. He said under the ruling, the same analysis should apply equally to other egregious acts of misconduct that violate public policy, including acts of workplace violence.
“That is, employers should have the right- -and in certain situations, the obligation-to terminate employees for egregious acts of misconduct,” Zaino said. “However, as always, the devil is in the details as to what is considered “egregious.”
Daniel Schwartz, a labor and employment lawyer with Shipman & Goodwin in Hartford, agreed the decision raises many questions. “Will employers then need to err on the side of caution and terminate all employees who are caught engaging in sexual harassment?,” he asked. “There’s a danger in reading too much into it, but obviously the state has shown a great deal of interest in this matter and I’m certain the case will be used by both sides.”
This case was not handled by our firm. However, if you have any questions regarding this case, or any employment or labor matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.
If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture.
Source: Jay Stapleton, Ruling Knocks Arbitration; Supreme Court Affirms Termination in Sexual Harassment Case, 39 Conn. Law Trib. 33 at 1 (Aug. 19, 2013)
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