The 1991 Senate confirmation hearings for Supreme Court Justice Clarence Thomas brought the issue of sexual harassment to the forefront of American consciousness. For the thousands of women who are subjected to it on a daily basis, I however, sexual harassment is not a new phenomenon. The publicity which surrounded Thomas’ confirmation caused many employers to recognize the need to sensitize employees about sexual harassment. In their attempts to eradicate sexual harassment from their workplaces and limit their liability to victims of harassment, employers primarily focused on educating their workers regarding what conduct constitutes sexual harassment, and informing employees as to what internal channels should be used to report harassment incidents.

Many employers, however, have not taken the steps necessary to ensure that they are not faced with conflicting obligations to the victims of harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”) and to the alleged harassers under the terms of their collective bargaining agreements. Such conflicts arise because courts and arbitrators analyze sexual harassment cases differently. There is a growing trend within the courts to analyze certain Title VII sexual harassment claims and the effectiveness of an employer’s remedy once the employer knows of the harassment from the perspective of a reasonable woman. In contrast, arbitrators reviewing a harasser’s discharge tend to give little weight to the effect the grievant’s conduct had – or will continue to have – on either the mythical reasonable woman, or the actual female complainant. Instead, the arbitrator’s focus is on the harasser, the employer, and the terms of the collective bargaining agreement. Further, under the courts’ reasonable woman standard, conduct may be classified as sexual harassment even when harassers do not realize their conduct is harassing. This is in direct contrast with arbitral standards, where the intent of the harasser is likely to be a key factor in the arbitrator’s determination of whether the employer had just cause to terminate the harasser.