finding absurd and a mockery of the dominant public policy against sexual harassment an award that reinstated, with full back pay, an individual whose egregious conduct amounted to sexual harassment
How later courts described this case
- finding absurd and a mockery of the dominant public policy against sexual harassment an award that reinstated, with full back pay, an individual whose egregious conduct amounted to sexual harassment
- noting that sexually explicit comments directed at co-worker and request to perform oral sex on her could constitute criminal harassment
- holding that an arbitration award reinstating an employee discharged for acts constituting sexual harassment violated well-defined and dominant public policy
- holding that arbitration award reinstating employee discharged for acts constituting sexual harassment, violated well-defined and dominant public policy
Written by the judges who cited it.
The opinion
Justice EAKIN,
concurring.
I fully agree Mitchell’s conduct was despicable, and sexual harassment in the workplace should not be tolerated, and that there is a clear public policy against workplace sexual harassment. That, however, is not the policy on which the case is decided. The majority posits a corollary to this policy, dictating that it is against public policy to reinstate with back pay a public employee who has egregiously sexually harassed a co-worker. I join the majority with the understanding the new public policy is limited to a public employer and egregious misconduct.
Just as with any form of repugnant behavior, there are gradations of misconduct, and the consequences that flow from such behavior must likewise have gradations commensurate with the conduct. Crimes such as assault are acts that are de facto against public policy — you cannot harass a coworker, and you are equally prohibited from punching them. But there are degrees of assault — a slap is not the same as a gunshot, though both qualify as assaults — and there are gradations of punishment that mirror the seriousness of the assault. Likewise, there are degrees of harassment, and there should be degrees of consequences as well. Where the harassment is by an employee paid by the public, the consequences of misconduct are presumptively greater. Where the harassment is, as here, egregious, the consequences must be greater.
However, while any workplace sexual harassment is against public policy, we cannot sanction a preemptive requirement of dismissal in all cases, no matter the level of misconduct. The majority does not attempt to address where the line is drawn for lesser harassment, or whether the same standards apply to non-public employers. Perhaps this is not the case in which to delineate standards and guidelines for arbitrators in keeping with this policy, but the same must at some point be offered. In the interim, I join the result of the majority.
*1130 I also join Justice Saylor’s observations that the analysis of the majority harkens back to the “core function” test, as contrasted with the “public policy exception to the ‘essence test.’ ” This case illustrates the amorphous and often nebulous nature of the essence test and policy exception thereto, and judicial application of the test is necessarily uncertain; this is not sanguine when employers and arbitrators try to predict the permissible range of sanctions. Perhaps a future reassessment of the “core function” test would lead us to a framework of review that is less uncertain for all concerned.