ASKING CO-WORKERS OUT
IS NOT SEXUAL HARASSMENT: ARBITRATOR REINSTATES TERMINATED OFFICER
In a decision which brings a rational approach to a very emotional
issue, a Northern California Arbitrator, David Nevins, reinstated an
East Bay Regional Parks Police Officer following his dismissal from the
Department for alleged sexual harassment. The Department contended that
the officer violated the Department's sexual harassment policy by
repeatedly asking female dispatchers out for dates. The officer
challenged the termination and was represented by Martin Gran of
Carroll, Burdick and McDonough. Following a three-day hearing and the
filing of post-hearing briefs, the Arbitrator reduced the termination to
a four-week suspension and awarded full back pay, with the exception of
the 30 days.
The case involved three dispatchers. The officer asked one of the
dispatchers out six to eight times over a four-month period. The
dispatcher declined these invitations, but waited months to finally tell
him in no uncertain terms that she was not interested in dating him.
Once she made this clear, the officer never asked her out again. She
never complained to the Department about the invitations, nor did she
wish to become involved in the Department's investigation of the
officer.
The officer's relationship with the second dispatcher is more
complicated. The two had known each other for years, played on the same
softball team, socialized together in group settings and spoke regularly
off-duty. Unbeknownst to the officer, this dispatcher apparently tired
of these contacts, and eventually blocked the officer's (and several
other people's) numbers from being able to call her. She never
complained to the Department about the officer, and she, like the first
dispatcher, did not wish to cooperate with the investigation.
The officer's conduct with the third dispatcher was somewhat more
serious. In that case, he parked at a location where he knew the
dispatcher would travel on her way home after work following her
swing-shift assignment. When she did not recognize his patrol car, he
pulled into traffic and followed her for a minute or two. When she saw
the patrol car behind her, she pulled off into a residential area. The
officer hit his emergency lights quickly and she stopped. The two
chatted for a few minutes, and before they parted, the officer asked the
woman if she would like to get a drink sometime - and offer the
dispatcher declined. She, likewise, did not complain to the Department
about the incident, in fact, she laughed about the incident with
co-workers the following day. The officer never asked her out again.
The Department's sexual harassment policy is carefully worded to
prohibit "[un]welcome sexual advances, requests for sexual favors
or other verbal or physical conduct [which] interferes with the
employee's work performance [or] creates an intimidating, hostile work
environment."
After noting that the officer basically asked these women out for
dates without making any overtly sexual reference, lewd remarks, sexual
jokes, etc., the Arbitrator ruled that asking a co-worker out for a date
does not constitute conduct of a "sexual nature." The
Arbitrator stated:
Since it still is lawful, natural, and expected within our population
for men and women to date one another, and since there is nothing in our
civil rights laws that seemingly restricts such natural interaction, it
is difficult to simply lump the act of requesting someone out for a date
into the regulated conduct of a "sexual nature." Indeed the
Employer allows for dating among its employees, which obviously and
implicitly allows for asking another out for a date, and it is a little
difficult to logically conceive of the Employer allowing with one hand
such activity but with the other hand prohibiting it.
The officer and his counsel vigorously argued that the officer's
invitations in no way affected the dispatchers' ability to perform their
jobs - one of the main factors listed in the policy. Not only did none
of the dispatchers complain, they all testified that the invitations
were merely an annoyance and that they did not affect their ability to
perform their jobs. The Department's sexual harassment policy mirror
state and federal law in that those sexual harassment statutes do not
protect against every workplace annoyance; they only prohibit conduct
severe enough to significantly affect a person's access to or ability to
perform his or her job.
Again, the Arbitrator agreed; Being bothered and annoyed by such
matters, or concerned with how they generally interact [with the
officer], however, are not unlike feelings commonly generated by any
number of personality differences in the workplace. Having such feelings
does not, however, equate to feeling intimidated or offended, lest we
ignore the differences between not only feelings but the words we use to
describe them.
In the final analysis, the Arbitrator simply did not see the conduct
as rising to the level of termination, and he ordered the officer
reinstated. The Arbitrator did fault the officer for using poor judgment
in using his emergency equipment to stop the dispatcher late at night,
and awarded a four-week suspension for the conduct. The Arbitrator
apparently followed the Grievant's suggestion that a short suspension
would be all that the facts could possibly warrant. The award states
that the suspension was "perhaps more than ample."
