Section 75 hearings refer to the collectively bargained arbitration process that handles complaints against qualified New York City public employees. This includes adjudicating allegations of workplace misconduct such as sexual harassment. Although employees have certain due process rights in a Section 75 proceeding, they do not override the larger public policy objectives of identifying and stopping discrimination in the workplace on the basis of sex.
Court Overturns "Irrational” Arbitration Decision in Favor of Alleged Harasser
The Appellate Division, First Department, recently set aside a Section 75 arbitration award that actually disagreed with the New York City Transit Authority's prior determination that one of its employees engaged in illegal sexual harassment. Although the arbitrator agreed with the Authority's factual findings, he apparently felt the subject of the sexual harassment was responsible for her situation. The First Department said this was an “unsustainable conclusion” under the law.
Here is briefly what happened. The respondent in this case works as a bus driver for the Authority. The accuser, a bus dispatcher, filed a complaint with the agency's Equal Employment Opportunity (EEO) office, detailing the respondent's history of sexual harassment against her. Specifically, the accuser said the respondent made numerous inappropriate remarks towards and about her. For example, she said the respondent “remarked loudly” in front of several other bus drivers that if she “had a woman like her at home” he would stay at home all day and “oil her down.”
The EEO investigated the complaint and determined the respondent violated the Authority's anti-sexual harassment policy. The Authority initiated disciplinary proceedings. Because the respondent failed to appear for the initial stage of the grievance procedure, the Agency terminated his employment. The respondent then sought Section 75 arbitration.
Following a hearing, the arbitrator said that while he was “compelled to come to the same factual conclusions as the EEO Investigators did” regarding the respondent's sexual harassment, his “misconduct did not rise to the level of a dischargeable offense.” According to the First Department, the arbitrator blamed the accuser, who was the respondent's supervisor, for “failing to earlier report sexual harassment.” In other words, had the accuser confronted the respondent earlier, it was “unlikely” that the situation would have escalated to the point where the Authority believed discharge was necessary.
The First Department said this line of reasoning was “both irrational and against this State's strongly articulated public policy against sexual harassment in the workplace.” Indeed, the arbitrator's ruling itself “contains language maligning victims in an entirely inappropriate manner.” Failing to immediately report sexual harassment “is not atypical” in these kinds of cases and should not be “construed as absolving [the respondent] of his misconduct.”
Accordingly, the First Department vacated the arbitrator's decision and returned the case with instructions to “enter a finding that respondent” violating the Authority's sexual harassment policy. The court left open the question of whether the respondent's violations rose to the level of a dischargeable offense.
How can Our New York City Employment Attorneys Help You?
At the Law Offices of White, Nisar & Hilferty, LLP, we represent both employees facing Section 75 proceedings and victims of workplace sexual harassment. Whatever your employment law-related issue, we can help. Call us at 646.760.6493 to schedule an initial consultation with a member of our team today.