Reinstatement of the sexual harasser: the conflict between federal labor law and Title VII.

Abstract

Greater numbers of employers are adopting and vigorously enforcing policies prohibiting sexual harassment in the workplace. Discipline, including possible termination of employment, often is prescribed for the violation of such policies. When employees are represented by a union and covered by a collective bargaining agreement, final decisions relating to discipline often are made by arbitrators pursuant to the agreement's grievance and arbitration procedure. For a variety of reasons, arbitrators may decide that a lesser form of discipline than that imposed by the employer is warranted for acts of sexual harassment. Such arbitration awards present a substantial conflict between two compelling public policies--the public policy favoring the private resolution of workplace disputes and the public policy against sexual harassment. This article will address the several federal courts of appeals' decisions that have attempted to resolve this conflict.