Arbitrator’s Sexual Harassment Opinion Upheld

Over the last decade, the United States Supreme Court has significantly tightened up on the standards for what constitutes sexual harassment. It is no overstatement to say that what might have been considered a very viable sexual harassment claim ten years ago might now be flatly rejected by the courts.

It was inevitable that the changing definition of sexual harassment would find its way into disciplinary cases. A recent case involving the Snyder County, Pennsylvania Prison shows one way in which the changed standards impact the disciplinary process.

The case began when the County fired corrections officers William Griffith and Heather Rohrbach. The conduct for which they were discharged consisted of sexual banter with other workers at the Prison that occurred on a single day and shift. On January 15, 2012, while a nurse employed by a third-party contractor at the Prison was distributing medications on the cell block, an inmate placed a love letter on her cart that contained romantic and sexual language. Griffith, who was accompanying the nurse on her rounds to provide security when she was in contact with the inmates, read the letter to himself while the nurse completed her rounds. When Griffith and the nurse arrived at the wing of the Prison where Rohrbach was stationed, the nurse asked Rohrbach to read the inmate letter to her, and Rohrbach read the inmate letter out loud.

Later in that shift, the nurse, Griffith, Rohrbach, and another Prison officer, Watch Commander Blessing, discussed the inmate letter while on a cigarette break outside. During that conversation, Griffith and Rohrbach participated in joking that the nurse “likes radiator hoses now” and explained to the nurse that “radiator hose” is slang for a black penis. The nurse showed no signs that she was upset by the joking or language and did not ask them to stop.

At the end of the shift, when employees and other correctional officers were clocking out, the nurse heard Griffth and Rohrbach singing songs with sexual lyrics and laughing. Griffith sang a song about a female corrections officer who was participating in the singing that included the line “She’s saving her hymen for” a Prison Watch Commander and someone in the group sang that the Watch Commander’s “c—k is c—ked.” The nurse who was in another room, thought that the sexual lyrics referred to her.

When the nurse complained, the County fired Griffth and Rohrbach. An arbitrator later found that Griffin and Rohrbach did not realize that the nurse was offended and did not have reason to know that she would be offended by the teasing about the inmate letter because sexual banter was common at the Prison and the nurse had actively engaged in sexual banter herself. The Arbitrator concluded based on these factual determinations that Grifffith and Rohrbach had not engaged in sexual harassment and should be reinstated with back pay.

The County then challenged the Arbitrator’s opinion, arguing that the opinion violated the public policy against sexual harassment in the workplace. An appeals court rejected the County’s arguments.

The Court acknowledged that “there is no question that the Commonwealth has a well-defined and dominant public policy against sexual harassment. Arbitration awards that require reinstatement where the employee has committed repeated acts of unwanted touching, sexual gestures or sexual propositioning violate this public policy.

“The mere fact that the employer asserts a valid public policy, however, is not a sufficient ground to vacate an arbitration award. An arbitrator’s award may be vacated for violation of public policy only if the grievant’s conduct found by the Arbitrator implicates the well-defined and dominant public policy and the award poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand and the factual findings of the arbitrator.

“The critical issue here, therefore, is whether the conduct found by the Arbitrator constitutes sexual harassment. It does not. For conduct of non-supervisor co-workers to constitute sexual harassment, it must be so severe or pervasive that it creates an abusive working environment. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not constitute sexual harassment. Mere isolated vulgar and sexual language therefore does not implicate the public policy against sexual harassment.

“The County’s contention that the award prevents adequate steps to eradicate sexual harassment is contradicted by the Prison’s own sexual harassment policy. For the type of conduct found by the Arbitrator here, the Prison’s sexual harassment policy does not permit suspension or any loss of employment benefits or status, let alone discharge. Rather, the policy provides that where only inappropriate conduct occurred, not unlawful, pervasive harassment, the only discipline that can be imposed is a warning and sexual harassment retraining with no record kept in the employee’s personnel file. The Arbitrator’s award did not prevent the Prison from imposing the very sanctions that it had determined were sufficient to prevent sexual harassment.”

Snyder County Prison v. Teamsters Local Union 764, 2013 WL 5614246 (Pa. Cmwlth. 2013).