Connecticut Supreme Court: Egregious sexual harassment compels termination, arbitrator's contrary award set aside

"The issue to be decided in this appeal is whether an arbitrator’s award violates public policy when an employer’s decision to dismiss an employee who has engaged in sexual harassment is reduced to a one year suspension without pay." This was the question decided by the Connecticut Supreme Court in State v. AFSCME, Council 4, Local 391.

The dispute arose from the termination of a correctional officer for sexual harassment. The grievant had been accused of making verbal comments to a coworker and touching him, allegedly in front of other employees and inmates. The acts were said to have occurred over an extended period of time.

While finding some of the witnesses may have "stretched the truth", the arbitrator concluded that the accusations were true and were substantiated by the witnesses. The arbitrator also concluded, however, that the offenses were not severe enough to justify termination of employment. Accordingly the termination was reduced to a one year unpaid suspension.

Affirming the lower courts, the Connecticut Supreme Court has determined that the award reinstating the correctional officer is contrary to the public policy against sexual harassment in the workplace. The Court held that the facts as found by the arbitrator compelled the termination of employment. The Court noted:

the grievant knowingly violated the state’s public policy against sexual harassment, as embodied in administrative directive 2.2, and ... his misconduct was both highly egregious and incorrigible. We also emphasize the undisputed fact that the conduct occurred in a prison in the presence of other employees and inmates, where the need for order, discipline and a culture of mutual respect among employees is particularly acute. Accordingly, we conclude that the public policy against sexual harassment in the workplace ‘‘require[d] nothing less than [the grievant’s] termination . . . .’’ Brantley v. New Haven, supra, 100 Conn. App. 863. We simply cannot conclude that ‘‘reasonable people [could] differ as to whether reinstatement or discharge [was] the more appropriate’’ form of discipline for this absolutely deplorable and repeated misconduct ...[footnotes omitted]

The Court also noted that the Union had presented evidence that other employees who engaged in sexual harassment had been disciplined short of termination, but concluded that:

although we must defer to the arbitrator’s factual findings with respect to these incidents, it is ultimately for this court, not the employer, to make the legal determination as to whether a particular form of discipline for a particular incident of employee misconduct complies with the public policy of this state. In other words, the fact that an employer has previously violated a public policy by retaining an employee who should have been dismissed does not alter the public policy or justify additional violations of the public policy.

The dissent would have confirmed the award, observing:

...the decision reached by the majority takes away the discretion of the arbitrator, when the collective bargaining agreement, as in this case, allowed for that very discretion. Further, the rule adopted by the majority effectively grants authority to the state to discharge an employee whenever sexual harassment is established, regardless of the nature of the harassment, thereby undermining the arbitration process voluntarily agreed to by the parties.