Issues and Standards in Arbitral Approaches to Sexual Harassment Cases

Donald J. Petersen

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DOI: 10.2190/KVG7-NYTC-M8M3-GB3X

Abstract

This study, based on 122 published arbitration awards, covering the years 1980 to 1996, is concerned with arbitral rather than court standards used in sexual harassment cases. Arbitrators deal almost exclusively with hostile environment harassment cases as quid pro quo sexual harassment must be carried out by a supervisor. Supervisors are not typically covered by collective bargaining agreements. Hostile environment sexual harassment takes the form of verbal, physical, written, and visual harassment. Arbitrators, aware that their decisions may be reversed in the courts on public policy grounds, are less likely to reverse an employer's penalty imposed for an alleged sexual harassment violation. Indeed, an employer may not even be required to have a sexual harassment policy in order to discipline/discharge for such misconduct.

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