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NY Appeals Court Tosses Ruling that Reinstated Sexual Harasser

woman being inappropriately touched on the shoulder by a male colleague

A New York appellate court has ruled that a union bus driver accused of sexually harassing a dispatcher will not be reinstated, vacating a New York trial court decision confirming an arbitrator’s award to reinstate the union driver.

In its decision, the court determined that “reinstating a sexual harassment offender runs counter to the strong public policy against sexual harassment in the workplace.”

The decision is remarkable in that courts rarely disturb and arbitration ruling.

Sexual comments made

The Manhattan and Bronx Surface Transit Operating Authority (Transit Authority) employed Tony Aiken as a bus operator.  He also worked as a union official for the Transport Workers Union of America, Local 100 (the Union) which represents employees of the Transit Authority. The work Aiken did as a union official was done on Transit Authority-paid release time.

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A female bus dispatcher filed a complaint with the Transit Authority’s office of equal employment opportunity against Aiken for sexual harassment.  The dispatcher, who was Aiken’s supervisor, alleged that he “made sexual remarks, undermined her supervisory authority and retaliated against her when she complained,” according to the New York Law Journal.

Aiken was placed on union-paid release time while an investigation occurred.

Transit Authority terminates employment

The Transit authority filed disciplinary charges against Aiken for the alleged sexual harassment and terminated him.

The Union filed a grievance, asserting that a safe-haven was created protecting Aiken from discipline from the Transit authority while he was placed on union-paid release time.  Following the terms of the Union and Transit Authority collective bargaining agreement (CBA) the matter went to final and binding arbitration.

The arbitrator found that the Transit authority violated the CBA by seeking to discipline Aiken while he was on approved Union-paid release time.  The Union then sought and obtained an order from the state's trial court enforcing the arbitration award that reinstated Aiken.

Appeals court reverses

The appeals court found that the arbitrator’s reinstatement of Aiken undermined the Transit Authority’s “ability to discipline employees such as Aiken in order to both punish the offender and to deter other employees from engaging in such behavior.”

The court reasoned that if the order forced the Transit Authority to honor the arbitration award, it would violate Title VII of the Civil Rights act and New York Human Rights Laws prohibiting sexual harassment in the workplace.

The court stated that if left standing, the arbitration award would have sent the message “that certain employees at the Transit Authority, mainly those who also performed union-related activities, may be free to create a sexually-charged atmosphere…because complaints against them will be impeded by CBA protections.”

The case is In re Phillips v. Manhattan and Bronx Surface Transit Operating Authority, Case number 652740/13 in the New York State Supreme Court, Appellate Division, First Judicial Department.

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