Issues and Standards in Arbitral Approaches to Sexual Harassment Cases

This study, based on 122 published arbitration awards, covering the years 1980 to 1996, is concerned with arbitral rather than court standards used in sexual harassment cases. Arbitrators deal almost exclusively with hostile environment harassment cases as quid pro quo sexual harassment must be carried out by a supervisor. Supervisors are not typically covered by collective bargaining agreements. Hostile environment sexual harassment takes the form of verbal, physical, written, and visual harassment. Arbitrators, aware that their decisions may be reversed in the courts on public policy grounds, are less likely to reverse an employer's penalty imposed for an alleged sexual harassment violation. Indeed, an employer may not even be required to have a sexual harassment policy in order to discipline/discharge for such misconduct. Sexual harassment often has more to do with the exploitation of one's power than with sex or harassment per se [I]. Sexual harassment cases appear to be on the increase. For example, the number of sexual harassment cases filed with the Equal Employment Opportunity Commis­ sion (EEOC) grew from 4,400 in 1986 to 15,342 in 1996 [2]. Roughly parallel­ ing this increase in EEOC sexual harassment cases were those published arbitra­ tion awards reported by the Bureau of National Affairs (BNA) and Commerce Clearing House (CCH), e.g., two such cases in 1980, but nine reported cases in 1996 [3]. This article is concerned solely with the arbitral approach to resolving sexual harassment cases. While arbitrators are no doubt cognizant of judicial approaches to sexual harassment matters, their primary responsibility is to