09.29.2017
Article

Commonwealth Court Concludes that Arbitrator’s Award Reinstating Teacher Dismissed for Sexual Harassment Violated a “Public Policy”

School Law Snapshot is written by Attorney Sean A. Fields, co-chair of the School Law Group.

The Big Picture . . .

In Neshaminy School District (“district”) v. Neshaminy Federation of Teachers (“union”), a case that involved a teacher dismissed for sexual harassment of a co-teacher, the Commonwealth Court affirmed a lower court decision that vacated an arbitrator’s reinstatement of the teacher.

1.) The court concluded that an arbitrator’s award reinstating a teacher terminated for sexual harassment was properly vacated by the lower court because the award violated an established public policy against sexual harassment.

2.) Applying the “public policy” exception to the rule that an arbitration award that meets the essence test must be upheld by courts, the court held that the arbitrator’s reinstatement of a teacher whose conduct created a “harassing, hostile and offensive work environment” for a co-teacher, “posed an unacceptable risk of undermining the clear sexual harassment policy of the district and the Commonwealth."

The Close Up . . .

Katz, a male ninth grade teacher in the district for 10 years, was terminated by the district for creating a hostile work environment for his fellow teachers and making lewd and suggestive statements to students. Katz’s female co-teacher, in her first year of teaching, testified before the arbitrator that Katz made repeated daily comments that included inviting her to sit on his lap. He also stated that he had to exercise self-control to avoid kissing the co-teacher. When the co-teacher objected to Katz’s comments because ninth grade students were starting to comment about a possible relationship between them, Katz’s response was, “so I shouldn’t slap your a[**].” Although the arbitrator found the co-teacher’s testimony, “as compelling, sincere, and credible as it was anguished,” the arbitrator reinstated Katz to his job with a 20 day unpaid suspension and required sexual harassment training.

Under the “essence test,” Pennsylvania courts are required to uphold an arbitrator’s decision if the decision draws its essence from a collective bargaining agreement between the union and the employer unless the award violates a public policy that is “well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” The court reasoned that while the arbitrator’s decision satisfied the essence test, the award reinstating Katz violated a well-defined public policy against sexual harassment. Using a three part test, the Court found that 1.) the nature of the conduct leading to the employee’s discipline had been identified; 2.) the comments made by the employee implicated a public policy that was well-defined and dominant; and 3.) the reinstatement of Katz posed an unacceptable risk that would undermine the public policy against sexual harassment. 

Ultimately, the court was persuaded by the district’s position that the arbitration award undermined a public policy against sexual harassment and would eviscerate the district’s ability to enforce that policy. Additionally, the district  successfully argued the arbitration award was similar to awards vacated for the reinstatement of an employee discharged for verbal and physical acts of sexual harassment in Philadelphia Housing Authority and a school employee dismissed after being found unconscious in a school bathroom due to a drug overdose in Westmoreland II.

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