Connecticut Court Adopts Strict Rule For Harassment Arbitrations

Most state courts in the country follow the approach of the Supreme Court in Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, 531 U.S. 57 (2000), and will uphold an arbitrator’s opinion reinstating a terminated employee unless there is a well-defined public policy expressed through state law that prohibits reinstatement. Connecticut’s courts take a different approach, and look much more to whether the employee’s conduct violated public policy than whether the public policy required the firing of the employee.

Connecticut’s approach was well-demonstrated in a recent case involving a corrections officer for the State Department of Corrections. The officer was fired for sexual harassment. When an arbitrator overturned the discharge, imposing a one-year unpaid suspension in its place, the State challenged the Arbitrator’s award on the grounds that it violated public policy.

The Connecticut Supreme Court agreed with the State, and overturned the Arbitrator’s decision. The Court started by sketching out the legal landscape in a way that suggested it was going to uphold the Arbitrator’s decision: “We must determine whether public policy required the Grievant’s dismissal. In making this determination, we are mindful that the fact that an employee’s misconduct implicates public policy does not require the Arbitrator to defer to the employer’s chosen form of discipline for such misconduct. As the United States Supreme Court has held, an arbitrator is authorized to disagree with the sanction imposed for employee misconduct.

“We also recognize that the fact that there is a strong public policy against certain misconduct does not require an employer to terminate every employee who engages in that misconduct. Rather, we must determine whether the employee’s misconduct was so egregious that it requires nothing less than termination of the employee’s employment so as not to violate public policy.”

The Court’s approach then veered sharply towards the State’s position: “We conclude in the present case that the public policy against sexual harassment in the workplace required the Grievant’s dismissal. The complainant testified in the arbitration proceeding as follows: ‘The Grievant stated to the complainant, ‘Hey homo, it’s about time you came downstairs and stop sucking cock.’ The complainant also testified that six weeks after that when he was in the pharmacy he felt something touch his buttocks, he jumped and turned around and the Grievant had a banana held at his crotch area, and made the statement in front of a witness, ‘he jumped like a girl.’ The complainant went on to testify that at least 30 times the Grievant called him a ‘ripper.’ The complainant didn’t know what that meant, and asked another employee what it meant and was told it meant ‘child molester.’ He confronted the Grievant and asked him to stop making those statements, but the Grievant continued.

“The complainant bought a parrot from another co-worker, the Grievant overheard the conversation and later in the shift asked the complainant, ‘What did you have to do for the bird, give him a blow job.’ The Grievant on other occasions also made comments about the complainant and a co-worker because they lifted weights together, and asked the complainant, ‘What do you guys do there, grab each other’s crank.’

“These facts compel the conclusions that the Grievant knowingly violated the State’s public policy against sexual harassment, and that his misconduct was both highly egregious and incorrigible. We also emphasize the undisputed fact that the conduct occurred in a prison in the presence of other employees and inmates, where the need for order, discipline and a culture of mutual respect among employees is particularly acute. Accordingly, we conclude that the public policy against sexual harassment in the workplace required nothing less than the Grievant’s termination. Indeed, if termination was not required to vindicate the public policy against sexual harassment in the workplace under these circumstances, it is difficult to conceive of circumstances where it would be.”

A dissenting justice argued that Connecticut should follow the majority rule in the country with respect to disciplinary arbitration opinions: “While I agree with the majority that Connecticut has a strong public policy against sexual harassment in the workplace, I find no evidence in either our statutes or case law that suggests that this public policy mandates a termination of employment in every instance in which there is a factual finding of sexual harassment and this Court determines that the employee’s misconduct was so egregious that it requires nothing less than termination of the employee’s employment so as not to violate public policy. I also respectfully suggest that another strong public policy must be considered in this matter. 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 and, when employer-employee disputes under those agreements arise, to favor resolutions reached through the use of arbitration.”

State of Connecticut v. AFSCME, Council 4, 2013 WL 8701238 (Conn. 2013).