Public policy against harassment results in overturning of arbitration award

Arbitration awards are notoriously difficult to overturn. The arbitrator can be utterly wrong on the facts and wrong on the law and still be upheld. One of the few reasons an arbitration award can be overturned is if it violates public policy.

In a recent decision, New York’s Appellate Division, Third Department, held an arbitrator’s award violated public policy because the imposed discipline penalty didn’t include termination of an alleged sexual harasser. The decision marks a significant departure from the usual deference (rubber stamp?) courts give arbitration awards and a sign that New York courts are ready to use workplace sexual harassment as the reason to overturn an arbitration award that isn’t sufficiently severe.

Background

A male employee of a state agency was disciplined for alleged egregious and disturbing acts of sexual harassment and violence. The alleged actions included cupping a female coworker’s breast from behind, “tackling” her on a couch, grabbing her wrist, slapping her thigh, and placing a fake “rat” on her desk after she complained to a supervisor.

Although the employee promised to stop his misconduct, the sexual harassment continued when he allegedly lifted the same coworker’s dress with a hammer to reveal her underpants, blocked her from leaving her cubicle, exposed his genitals to her, and lifted her shirt over her head.

He later allegedly “straddled the coworker at her desk and, utilizing vulgar language, threatened to ‘take’ what he wanted.” The coworker’s complaint prompted an investigation and disciplinary charges against him.