ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

October 26, 2018

Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality


Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality
New York City Tr. Auth. v Phillips, 2018 NY Slip Op 02442, Appellate Division, First Department

The New York City Transit Authority [Authority] appealed a Supreme Court ruling rejecting its Article 75 petition seeking to vacate an arbitration award.

The New York City Transit Authority had sought a court order vacating a determination by an arbitrator that had set aside the Authority's determination that one of its employees [Harasser] was guilty of sexual harassment of his co-worker and the penalty it had imposed on Harasser -- termination from his position. Supreme Court denied the Authority's Article 75 petition to vacate an arbitration award, confirming the arbitration award and dismissing the proceeding. The Authority appealed the Supreme Court's decision.

The Appellate Division reversed the lower court's decision, on the law, granted the Authority's petition, and the remanded the matter to a different arbitrator to [1] enter a finding that Harasser had subjected a co-worker to inappropriate and unwelcome comments of a sexual nature in violation of the Authority's sexual and other discriminatory harassment policy and [2] to pass upon the appropriateness of the penalty of termination imposed by the Authority on Harasser.

The Appellate Division, in reversing the Supreme Court's ruling,  noted that [1] the arbitrator had "expressly" agreed with the pertinent factual findings set out in the investigation report submitted by the Authority's Office of Equal Employment Opportunity [EEO],* but [2] had nonetheless, "incredibly and inconsistent with his own findings, the arbitrator  ruled that [Harasser's] conduct did not "rise to the level" of sexual harassment."

Further, said the court, "[t]he arbitrator's decision fashions a remedy that violates public policy." Moreover, the award contains language maligning victims in an entirely inappropriate manner, including statements that it was incumbent on the involved co-worker to take appropriate action if she felt Harasser's comments were inappropriate and that such a "blame the victim" mentality inappropriately shifts the burden of addressing a hostile work environment to the employee.

The Appellate Division then opined that the arbitrator's decision belies the realities of workplace sexual harassment. "The fact that the victim did not earlier report [Harasser's] behavior is not atypical and should in no way be construed as absolving [Harasser] of his misconduct" and the arbitrator's decision shifts the onus to the employee to report and fend off the harasser.

Accordingly, explained the Appellate Division, "public policy prohibits enforcement of the arbitration award in this case."

* EEO's report concluding that there was reasonable cause to believe that the Harasser had subjected a co-worker to inappropriate and unwelcome comments of a sexual nature in violation of the Authority's' sexual and other discriminatory harassment policy, which policy defined sexual harassment to include "unwelcome sexual advances and other behavior of a sexual nature when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment."

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com