State of Connecticut v. AFSCME, Council 4, Local 391, No. 18749 (August 6, 2013): The Connecticut Supreme Court recently upheld the reversal of an arbitrator’s decision to reinstate an employee whose employment was terminated for sexually harassing a coworker. The court determined that the arbitrator’s ruling for reinstatement was a violation of “clear, well-defined, and dominant” public policy against sexual harassment in Connecticut—one of the few bases upon which a court may overturn an arbitration decision. The court, quoting a Connecticut appellate court case, noted that the relevant inquiry was whether the employee’s misconduct was “so egregious that it requires nothing less than termination of the [worker’s] employment so as not to violate public policy.” While this decision arose in the context of an employer challenging an arbitrator’s ruling for reinstatement of an employee under a collective bargaining agreement, the court’s decision could potentially have a greater impact given the broad language that the court used in the opinion.
In reaching its decision to overturn the arbitrator’s ruling for reinstatement, the court indicated that some conduct by a harasser may be so egregious that any punishment short of termination constitutes a violation of public policy. It is not difficult to foresee an employee who has alleged harassment relying upon the court’s language to rebut any argument by an employer that it properly “remedied” the harassment by disciplining the harasser through means short of termination. An employee could argue, based on the court’s ruling, that the harasser’s actions were so egregious that any punishment “less than termination” was not only an improper remedy, but a violation of public policy. When disciplining workplace harassers, employers must keep in mind that under certain circumstances, for conduct of a particularly egregious nature, termination may be the only proper remedy.