Arbitrator Should Have Found That Transit Authority Employee Engaged in Sexual Harassment, First Department Holds

In New York City Transit Authority v. Phillips, 2018 NY Slip Op 02442, 2018 WL 1719789 (N.Y. App. Div. 1st Dept. April 10, 2018), the court reversed a lower court decision and held that the arbitrator should have found that a Transit Authority employee (Aiken) subjected another (Melendez) to inappropriate and unwelcome comments of a sexual nature in violation of petitioners’ sexual and other discriminatory harassment policy.

Here is a blurb from the case:

[T]he arbitrator’s decision is irrational as it purports to adopt the findings of the EEO in all respects, and yet arrives at the unsustainable conclusion that Aiken did not violate the workplace sexual harassment policy. Among the express findings of the EEO—with which the arbitrator was “compelled to agree”—were that Aiken offered to act as Melendez’s “sugar daddy”; that Aiken stated, in the presence of others, that he would “stay in bed all day” if he had a woman like Melendez and would “oil her down”; and that Aiken placed his wallet on the ledge and stated in the presence of others, “I would give all of this” for Melendez.

Given such findings, it is unfathomable that the arbitrator could find that Aiken’s conduct did not violate the workplace policy against sexual harassment, which expressly defines sexual harassment to include behavior which “has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile or offensive working environment.” This disjunction between the arbitrator’s findings and his summary conclusion that Aiken’s behavior nonetheless did “did not rise to the level” of sexual harassment is fundamentally irrational[.]

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