In The Courts (harassment)

A U.S. District Court ruled that an arbitrator properly ordered reinstatement without back pay for a rental car company worker who brought to work, and left in a place where others could see, rap song lyrics he wrote that were racist and re-ferred to his supervisor in violent terms. The judge ruled that the arbitrator did not exceed his authority under the bargaining contract between the employer and IBT Local 781, although the plaintiff had previously received three disciplinary warnings and the contract provided for discipline “up to and including discharge” for a fourth offense.

The plaintiff, along with some of his co-workers, belonged to a rap group and often discussed their music at work. He brought to work a song he wrote entitled “Budget O’Hare Bitches” and left it where another employee found it and gave it to the supervisor mentioned in the song. The arbitrator found “[t]he song contained obscene, misogynist and racist language, and violent imagery” and referred to the plaintiff’s supervisor by name “in the context of what can fairly be characterized as explicitly violent lyrics.”

The company fired the plaintiff for violating policies against harassment and violence, and asked the arbitrator to decide whether the plaintiff was fired for just cause, as required by the bargaining contract, and, if not, what the appropriate remedy should be. The arbitrator found that the company had legitimate concerns about the plaintiff’s “grossly irresponsible conduct,” and that he did not have the right to bring such materials to work in a way that was likely to be discovered by others who would find them offensive, threatening, or harassing.

But the arbitrator determined the plaintiff “did not intend to threaten or harass … nor did he intend to subject anyone … to unwelcome words and/or images which might be deemed offensive to at least some who were not fans of or familiar with rap music.” The judge said, “there is no indication that [plaintiff] had ever behaved violently toward his coworkers or had been disciplined for doing so.”

In another district court, summary judgment was granted in favor of the Bakery, Confectionery and Tobacco Workers Local 6, when the judge found that an arbitrator had not exceeded his authority or violated public policy when he ordered a candy manufacturer to reinstate an alleged sexual harasser who was accused of violating a “zero tolerance” equal employment policy. The arbitrator found that the employer lacked “proper cause” because there was a determination that the harassment did not take place.

“Despite its well-defined public policy requiring employers to take affirmative steps against sexual harassment, the Company is also bound by the collective bargaining agreement that only permits the Company to discharge an employee for ‘proper cause,’” the judge said in rejecting the employer’s motion to vacate the arbitrator’s decision. The company argued on the basis of a former claim which held that an arbitrator who ignored prior misbehavior and was insensitive to the rights of the female complainant violated public policy. The judge pointed out that the case quoted involved a reinstatement where no determination had been made regarding the harassment. In contrast, the arbitrator had reviewed the investigation in this case, and made a finding that the company’s EEO policy had not been violated.

The plaintiff had been progressively disciplined for three other EEO violations when he allegedly breached the company’s policy that prohibits engaging in sexually-oriented conversations that interrupted another’s ability to work. In the incident which led to his termination, a pregnant female employee announced that she intended to breast feed her newborn, and the plaintiff asked her if she was going to share the milk with her husband. The co-worker told him the comment was disgusting, but did not immediately complain to management. The arbitrator focused on the fact that she did not complain about the incident until after a vacation, and found “[u]nder the circumstances it is difficult to conclude [the co-worker] felt harassed” or offended.