For thirty years courts and labor arbitrators have grappled with what constitutes sexual harassment and how to remedy such behavior. The Federal judiciary has developed case law on sexual harassment under Title VII of the Civil Rights Act of 1964. However, arbitrators addressing this issue under collective bargaining agreements have often treated similar fact patterns differently than jurists. In contrast, labor arbitrators decide culpability first, and then consider the appropriate remedy. In reconciling these separate paths for establishing standards of workplace conduct, the authors will provide a model that explains how arbitrators decide sexual harassment cases and how this model dovetails with the case law developed by the Supreme Court since 1986. This analysis is intended to be useful to advocates in sexual harassment cases brought under a collective bargaining agreement, as well as to arbitrators and academicians. Guidance is provided for a variety of considerations such as selection of an arbitrator, framing the issue, effective use of requests for information, and much more.
Mollie H. Bowers and E. Patrick McDermott,
Sexual Harassment in the Workplace: How Arbitrators Decide
48 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol48/iss3/3