CA2: Reinstatement without back pay for "first time" sexual harasser not contrary to public policy

In a Summary Order, the Second Circuit has affirmed the decision of the District Court (here) refusing to vacate an Award of Arbitrator Carmelo Gianino. Arbitrator Gianino had ordered the reinstatement, without backpay, of grievant, a security guard, who had been dismissed "for creating a hostile work environment when he made sexualized comments about a female staff member's wardrobe and appearance." Barnard College v. Transport Workers Union of America, AFL-CIO Local 264.

Grievant, who was also the Local Union President, was representing another employee in a disciplinary hearing when he claimed he was unable to question the witness because her attire made him uncomfortable. When pressed for the reason for his discomfort he replied that her blouse was cut too low. 

The Arbitrator found that Grievant's conduct warranted discipline, but that termination was too severe. He ordered grievant's reinstatement without backpay and with loss of seniority credit for the time he was off. 

The College sought to vacate the Award, asserting that it was contrary to public policy, to law, and  beyond the authority of the Arbitrator. The District Court rejected all of these claims, and confirmed the award. 

The Second Circuit affirmed. It found no violation of public policy, noting:

It is certainly the case, as we have long noted, that "[t]he public policy against sexual harassment in the work place is well-recognized." Newsday, Inc. v. Long Island Typographical Union, No. 915, CWA, AFL-CIO, 915 F.2d 840, 844 (2d Cir. 1990). But we have only found that this public policy counsels against deference to an arbitral award when an arbitrator reinstates a terminated individual who had engaged in multiple acts of sexual harassment—including acts that had already served as the basis of prior arbitral rulings against that individual. Id. at 845. In such instances, reinstatement would indeed violate public policy, and vacatur of the arbitral award would be justified.
In the present case, however, [grievant] was being punished for only a single act, and public policy does not counsel as strongly against deference to the arbitral award

The Court also observed that, as a result of the Award, grievant lost his claim for approximately $80,000.00 in back pay, and that such a punishment was "consistent" with a public policy of eradicating sexual harassment from the workplace. 

Finding no merit in any of the College's arguments, the Court affirmed the judgment of the District Court.