SC Year In Review: Arbitration And Sexual Harassment In The Workplace
Last year, we reported that the most significant business law case decided was Patino v. Birken Manufacturing Company, 304 Conn. 679 (2012), in which Chief Justice Chase Rogers wrote an opinion holding that Connecticut General Statutes § 46a-81c (1) creates a cause of action for hostile work environment claims where employees are subjected to discrimination and harassment based on their sexual orientation.
This year, Chief Justice Rogers again addressed the vexing issue of workplace harassment by writing for a majority (Justice Dennis Eveleigh dissented) that held that an arbitrator's award should be vacated because it did not recognize that there is a clear, well-defined, and dominant public policy against sexual harassment in the workplace in Connecticut.
In State of Connecticut v. AFSCME, Council 4, Local 391, 309 Conn. 519 (2013), the grievant, a Department of Corrections employee, was terminated from his employment for engaging in an pattern of sexual harassment in violation of the department's administrative directive. That directive provides that the workplace shall be free of sexual harassment and states that any employee who engages in such conduct shall be disciplined, up to and including termination. The matter was sent to arbitration where the arbitrator reduced the employee's dismissal to a one-year suspension without pay, concluding that the termination was not for "just cause" within the meaning of the collective bargaining agreement. The state then appealed and claimed in part that the reinstatement award violated Connecticut's public policy against sexual harassment.
The trial court vacated the arbitration award and held that because there was a well-defined and dominant public policy against sexual harassment in the workplace, anything short of termination of the grievant's employment would be insufficient to uphold this public policy. In reaching this decision, the court noted that the grievant knew about the department's zero tolerance policy against sexual harassment, but he nevertheless continued to engage in lewd and offensive conduct toward his co-worker. The Appellate Court affirmed the judgment of the trial court.
The Supreme Court, in affirming the Appellate Court, similarly held that there is a clear, well-defined, and dominant public policy against sexual harassment. The Court also determined that the arbitrator's interpretation of the collective bargaining agreement violated public policy.
In reaching its conclusion, the Court noted that it employs de novo review of an award when the challenge to an arbitrator's authority is premised on public policy grounds and where the challenge has a colorable basis. Under the public policy exception, as the Court explained, courts are concerned not with the correctness of the arbitrator's decision, but with the lawfulness of enforcing the award. Because of this, the chief justice wrote, courts must decide whether "under the arbitrator's presumptively correct interpretation of contract, the contract provision violates a well-defined and dominant public policy." (emphasis in original). Put another away, the issue is whether the arbitrator's "interpretation of the agreement as requiring a less severe form of punishment violates public policy."
To resolve this issue, the Court first addressed whether there was an explicit and well-defined public policy. The Court answered this question in the affirmative, concluding that the policy against sexual harassment in the workplace is explicitly discernible from Connecticut General Statute § 46a-60 (a), which provides that sexual harassment in the workplace constitutes a hostile work environment. Second, the Court determined whether the contract provision requiring the grievant's reinstatement violated a well-defined and dominant public policy. In deciding that, the Court recognized that termination is not required for every employee who engages in misconduct that offends public policy and that an arbitrator does not have to defer to an employer's disciplinary decision when the misconduct implicates public policy. In the instant case, however, the highly egregious and offensive nature of the grievant's conduct as well as the grievant's knowing violation of the policy against sexual harassment, as embodied in the department's directive, required nothing less than termination.
Justice Eveleigh authored a dissenting opinion. Although Justice Eveleigh recognized that Connecticut has a strong public policy against workplace sexual harassment, he disagreed that termination is required in every instance in which there is a finding of sexual harassment and where the court determines that an employee's misconduct is so egregious that public policy requires nothing less than termination. According to Justice Eveleigh, the strong public policy favoring arbitration should require the courts to follow the arbitrator's decision.
In Patel v. Flexo Converters U.S.A. Inc., 309 Conn. 52 (2013), the Court addressed the scope of the international tort exception to the exclusive remedy provision of the Workers' Compensation Act, Connecticut General Statutes § 31-275, et seq that it previously had enunciated in Jett v. Dunlap, 179 Conn. 215 (1979).