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Sexual Harassment Within the Context of the National Labor Relations Act

May 1, 1998

We examine here two aspects of labor law. The first is whether and in what circumstances certain forms of sexual harassment can constitute an interference with the exercise of an employee's rights under Section 7 of the National Labor Relations Act (the "NLRA" or the "Act")1 and thereby violate Sections 8(a)(1) and 8(a)(3).2 Second, we examine an issue common to all Title VII claims -- the reconciliation of Alexander v. Gardner-Denver, 415 U.S. 36 (1974), and Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), and whether and under what circumstances in a collective bargaining context a Gilmer-type waiver may be obtained consistent with the duty to bargain in good faith under Section 8(a)(5).3

I. Whether certain forms of sexual harassment can constitute interference with the exercise of Section 7 rights.4

Quite naturally, the main body of law protecting employees in the workplace from sexual harassment emanates from Title VII and the various state, city and local statutes following its lead. Largely ignored, perhaps as a consequence of the National Labor Relations Board (the "NLRB" or the "Board") holdings in the early '70s, is whether certain forms of sexual harassment are so invidious as to be inherently destructive of an employee's right to assert his/her protected right to complain and remedy employer sponsored or condoned action. That is, can certain forms of sexual harassment in and of themselves, absent any retaliation for bringing a charge or complaint, violate 8(a)(1) or 8(a)(3)?5

From a traditional labor law standpoint the issue is simple. Any employee who engages in concerted activity to complain about sexual harassment is protected from any form of retaliation or discrimination in employment for engaging in that activity.6 For sexual harassment to be cognizable under the Act, two elements are necessary -- concerted activity and proof that the employer's adverse action was taken to deter the employee from engaging in Section 7 rights. Absent concerted activity within the accepted definitional parameters and absent evidence that the employer's action was motivated by a desire to discourage the exercise of Section 7 rights, traditionalists argue that the freedom from sexual harassment, like the freedom from any other form of discrimination can receive no NLRA protection.

Notwithstanding this traditional approach, there is a serious question as to whether certain forms of sexual harassment can be, by their nature, so invidious and destructive that they undercut the likelihood or even the very possibility of concerted action, thereby permitting the necessary motive to be implied. Said another way, because certain forms of sexual harassment involve conduct of such a destructive nature, should the standards of concerted action and motive be modified?

As the law stands now, Section 7 of the NLRA "protects concerted activity by workers to alleviate oppressive working conditions."7 Concerted activity is activity which is engaged in with or on the authority of other employees, and not solely by or on behalf of one employee.8 Where there is no evidence that a complaint of sexual harassment is brought by one employee on behalf of, or with the authorization of, any other employee, or that the employee spoke with other employees before bringing the complaint, there is no concerted activity. And, checking the "class action" box on an EEOC charge does not constitute or demonstrate concerted activity, but rather, merely reflects one employee's belief that discrimination is widespread.9

However, an employee acting alone may be considered to be engaged in concerted activity if his or her individual activity is reasonably directed toward enforcing of provisions of a collective bargaining agreement.10 Presumably then, an employee covered by a collective bargaining agreement which prohibits sexual harassment who complains about sexual harassment, may very well be protected by Section 7 even though he or she acts alone.11 Absent retaliation for engaging in concerted activity, such as bringing a complaint, discrimination is generally not cognizable under the NLRA. Discrimination violates the NLRA only if the charging party demonstrates a nexus between the discrimination and interference with an employee's Section 7 rights.12

But, the Supreme Court has held that some conduct is so "inherently destructive of employee interests" that an improper motive to interfere with section 7 rights may be inferred.13 Conduct which is inherently destructive of important employee rights is that which directly and unambiguously penalizes or deters protected activity.14

In 1973, in Jubilee Mfg. Co., 202 NLRB 272, the Board specifically rejected the notion that discrimination based on a protected classification, sex, was inherently destructive of employees' rights. In Jubilee, the complaint alleged that the employer violated 8(a)(1) and 8(a)(3) of the Act by granting wage increases to male employees based solely on considerations of sex. The Board found that "discrimination based on race, color, religion, sex, or national origin, standing alone, . . . is not 'inherently destructive' of employees' Section 7 rights and therefore is not violative of Section 8(a)(1) and (3) of the Act."15 The Board, consistent with prior Board law, noted that "[t]here must be actual evidence, as opposed to speculation, of a nexus between the alleged discriminatory conduct and the interference with, or restraint of, employees in the exercise of those rights protected by the Act."16

Jubilee explicitly rejected the reasoning advanced in 1969 by the D.C. Circuit in United Packinghouse, Food and Allied Workers Int'l Union v. NLRB, 416 F.2d 1126, cert. denied 396 U.S. 903 (1969), which held that a pattern and practice of race discrimination violates Section 8(a)(1) of the Act. According to the D.C. Circuit "in order to find that an employer's racial discrimination violates Section 8(a)(1) it must be found that such discrimination is not merely unjustified, but that it interferes with or restrains discriminated employees from exercising their statutory right to act concertedly for their own aid or protection, as guaranteed by Section 7 of the Act."17 "Thus, in the context of employer racial discrimination the question reduces to whether that discrimination inhibits its victims from asserting themselves against their employer to improve their lot."18

In United Packinghouse, the court observed that race and national origin discrimination inevitably set up an unjustified clash of interests between groups of workers, thus frustrating the possibility of effective concerted action. Judge Skelley Wright, writing for the majority, noted that "[t]he white workers expend their energy against the Negroes, the latter resent the whites, and neither group sees that sometimes their interests might be better served by joint action against their common employer."19 Moreover, the Court noted that race and/or national origin discrimination creates in its victims an apathy or docility which inhibits them from asserting their rights against the employer-perpetrator:20

The conclusion that racial discrimination may impede its victims in asserting their rights seems inescapable. This docility stems from a number of factors -- fear, ignorance of rights, and a feeling of low self-esteem engendered by repeated second class treatment because of race or national origin. Discrimination in employment is not different in this respect than discrimination in other spheres. In its historic decision in Brown v. Board of Education of Topeka [citations omitted], the Supreme Court stated: "* * * To separate [Negroes] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may effect their hearts and minds in a way unlikely ever to be undone. * * *"21

The Court found that "the confluence of these two factors sufficiently deters the exercise of Section 7 rights to violate Section 8(a)(1)."22

In rejecting United Packinghouse, the Board in Jubilee reasoned that although discrimination may have the effect of setting group against group, that result is by no means inevitable; in addition, discrimination may very well have the effect of causing minority groups to coalesce.23 The Board also reasoned that in light of the "increased militancy" of minority groups, it is apparent that not all discrimination causes docility.24

Notably, the Board decided Jubilee six years before the theory of sexual harassment was first articulated25 and thirteen years before the Supreme Court declared sexual harassment to be a violation of Title VII.26 Accordingly, Jubilee did not address whether certain forms of sexual harassment could be different than other forms of discrimination and could be inherently destructive of an employee's Section 7 rights, and several of the arguments articulated by the Board in Jubilee do not necessarily apply to sexual harassment.

It is possible, indeed likely, that certain forms of sexual harassment present characteristics which call for a different analysis than that applied to other forms of discrimination. Because of these unique characteristics, sexual harassment presents a more compelling case for a violation of Section 8(a)(1) than do other forms of discrimination. Certain forms of sexual harassment, unlike other forms of discrimination, very often target one individual for ill treatment, rather than targeting all members of a protected class. And, the person targeted for sexual harassment frequently feels isolated, helpless and separated from others, even those within her or his protected class. Hence, the notion that all forms of sexual harassment cause the individual to coalesce with others in the workplace is incorrect. Further, sexual harassment clearly has the effect of pitting groups of employees against each other -- surely victims are pitted against perpetrators.

Moreover, Jubilee's theory that discrimination does not necessarily cause docility does not apply to egregious forms of sexual harassment, which have effects and manifestations which are different from other forms of discrimination. Sexual harassment, particularly quid pro quo harassment, involves an element of private and personal physical invasion that is not a part of any other kind of discrimination, including harassment based on factors other than sex.27 This invasion is generally coupled with a direct or implied threat or promise of a change in conditions of employment and an explicit or implicit warning that the victim had better not tell anyone about the incident.28 By contrast, no other form of discrimination includes a demand for physical/sexual conduct; indeed, rarely will other forms of discrimination contain a physical element at all. In addition the "code of silence" is rarely present in other forms of discrimination which are often carried out in the light of day, although they may be masked by some pretext.

From a psychological point of view, victims of sexual harassment may experience insomnia, depression, nervousness, emotional breakdowns, nervous tics, and feelings of fear and powerlessness.29 Sexual harassment may also cause victims to experience feelings of humiliation,30 diminished self-esteem,31 dysfunctional personal relationships,32 guilt,33 nervous tension,34 vulnerability to substance abuse35 and degradation when the person in power is the perpetrator.36 Victims may also experience physical symptoms such as headaches, backaches, nausea, loss of appetite, weight gain or weight loss, fatigue, and high blood pressure.37 The stress of sexual harassment often makes working conditions unbearable; it forces women to abandon jobs and positions of seniority; and, it inevitably negatively affects job performance, decreasing the victim's chance for advancement and reducing the victim's motivation.38

The result is that few women are willing to complain about sexual harassment to people in the company who may have the power to remedy the situation. Victims of sexual harassment fear that reporting the harassing conduct will lead to negative repercussions, such as public embarrassment, employment termination, or more harassment.39

And, there is some evidence that employers and even courts are skeptical of women who complain about sexual harassment. Complaints of sexual harassment are characterized as creating a "he said/she said" dilemma, and most people will tend to believe the more highly-ranked and credentialed person.40 Credibility is severely damaged when the victim is too afraid to promptly come forward to report the harassment, creating an odd dichotomy whereby the greater the fear created by a harasser, the less likely an employer or court is to believe the victim.41

Surely then, certain forms of sexual harassment interfere with the right to engage in protected concerted activity, and some forms of sexual harassment are so severe or invidious as to be inherently destructive of Section 7 rights. The idea that certain sexual harassment can impede the very right to report or complain suggests that traditional notions of "acting in concert" and the need for a nexus between the conduct and interference with Section 7 rights needs reevaluation. The NLRB, with its particular expertise in employment matters, can sort out and determine on a case by case basis which forms of sexual harassment and which factual circumstances create a need for 8(a)(1) and/or 8(a)(3) protection.

Because sexual harassment is a unique form of discrimination which is far more inherently destructive of the victim's right to complain than other kinds of invidious discrimination, the Board should reevaluate Jubilee and determine whether it is applicable in certain cases where the discrimination itself is thoroughly inconsistent with the free exercise of Section 7 rights.

II. Whether and under what circumstances a Gilmer-type waiver may be obtained from employees represented by a union.

Even if certain forms of sexual harassment do not interfere with Section 7 rights, sexual harassment is often prohibited by a provision in a collective bargaining agreement under which the bargaining agent, on behalf of a victim/employee, can seek redress through arbitration.

In Alexander v. Gardner-Denver, 415 U.S. 36 (1974), the United States Supreme Court held that an employee whose claim that the employer discriminated against him on the basis of race, in violation of the non-discrimination clause in a collective bargaining agreement, was rejected by the contract arbitrator is not barred from thereafter pursuing a Title VII lawsuit in federal court.42 The Supreme Court reasoned that:

It is true, of course, that a union may waive certain statutory rights related to collective activity, such as the right to strike. [citations omitted]. These rights are conferred on employees collectively to foster the processes of bargaining and properly may be exercised or relinquished by the union as collective-bargaining agent to obtain economic benefits for union members. Title VII, on the other hand, stands on plainly different grounds; it concerns not majoritarian processes, but an individual's right to equal employment opportunities. Title VII's strictures are absolute and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII. In these circumstances, an employee's rights under Title VII are not susceptible of prospective waiver.43

Moreover, the Court held that an individual's right under Title VII to a judicial forum could not be waived prospectively and it rejected the notion that arbitration was ever an appropriate forum for the final resolution of Title VII rights.44

Given this rather strong rejection of the process of arbitration by the Gardner-Denver Court, it was somewhat surprising when, seventeen years later in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), the Supreme Court, albeit in another context, decided that arbitration was no longer disfavored and that individual employees could waive their right under the civil rights statutes to a federal judicial forum, in favor of arbitration.45 Distinguishing the Gardner-Denver line of cases, the Court noted:

First, those cases did not involve the issue of enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. . . . Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the [Federal Arbitrations Act] which . . . reflects a "liberal federal policy favoring arbitration agreements."46 46†

Because Gilmer did not arise in a collective bargaining context, there was some question as to whether Gilmer overruled Gardner-Denver. Litigation on that point has resulted in a split of circuits: the Second, Sixth, Seventh, Eighth, Tenth, Eleventh, and District of Columbia Circuits have held that Gilmer did not overrule Gardner-Denver and that agreements to arbitrate discrimination claims contained in collective bargaining agreements do not preclude an employee from bringing a lawsuit in federal court.47 The Fourth Circuit, however, in Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir. 1995), and later in Wright v. Universal Maritime Service Corporation, 157 L.R.R.M. (BNA) 2640, 1997 WL 422869 (4th Cir. 1997), cert. granted 118 S.Ct. 1162 (March 2, 1998), held that Gilmer in effect did overrule Gardner-Denver and that an employee who is covered by a collective bargaining agreement which provides for arbitration of statutory rights is barred from bringing a federal lawsuit.48 48†

While the Fourth Circuit specifically acknowledged that the Gardner-Denver and Gilmer Courts recognized the potential tension between collective representation and statutory rights,49 in both Austin and Wright, it held that despite the possibility of such tension, the plaintiff was party to a voluntary agreement to submit statutory claims to arbitration, and therefore could not bring a federal lawsuit to enforce statutory claims.50

With the grant of certiorari in Wright on March 2, 1998, presumably the question of whether Gilmer overruled Gardner-Denver will be answered shortly. If the Supreme Court determines that a statutory discrimination claim can be barred by an agreement to arbitrate found in a collective bargaining agreement, then an employee could be limited to pursuing discrimination claims in one forum, controlled not by the employee, but by the employee's collective bargaining representative. However, if the Supreme Court determines that a statutory discrimination lawsuit is not barred by an arbitration provision in a collective bargaining agreement, the employee could potentially have both a statutory and a contract claim arising out of the same conduct. The employer could, as it apparently can now, end up defending itself against the same claim in two separate forums.

If, as anticipated, the essential holding of Gardner-Denver is left intact, a question is raised as to whether Gardner-Denver places represented employees in a more favorable position than non-represented employees with respect to a Gilmer-type agreement. While non-represented employees can be forced to sign Gilmer-type agreements,51 represented employees may be protected from such a requirement because of their represented status and the 8(a)(5) duty to bargain with their union. The question is whether an employer, without violating Section 8(a)(5), can require a represented employee to sign a Gilmer-type agreement without first bargaining about the issue with the union.52

On one hand, given the powerful language of Gardner-Denver that "[o]f necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount purpose behind Title VII,"53 logic dictates that an individual's right to a judicial forum cannot be a mandatory subject of bargaining. If a union has no power to waive an individual's statutory right to bring a lawsuit, it would be meaningless to require an employer to bargain with the collective bargaining representative on that subject.

In addition, the Supreme Court has clearly established that the choice of forums in which a right is addressed is inextricably bound to the substantive right itself,54 and that "[t]he nature of the tribunal where suits are tried is an important part of the parcel of rights behind a cause of action."55 Accordingly, the process by which an employee seeks redress of a Title VII right is part and parcel of the Title VII right itself. And, since "the rights conferred [by Title VII] can form no part of the collective-bargaining process . . . ",56 it seems to follow that the process by which an employee seeks redress of Title VII rights, either in a judicial proceeding or in a Gilmer type arbitration, simply cannot be a mandatory subject of bargaining.

Further, permitting an employer to bypass the union does not abrogate the union's right to bargain about contractual rights and remedies.57 A union would still be fully entitled to bargain into a collective bargaining agreement employee rights identical to those in Title VII and also to bargain arbitration machinery requiring the arbitrator to interpret the contract's provisions using the principles established in Title VII case law.

On the other hand, this logical analysis, although on its face compelling, appears to collide with core principles of Section 8(a)(5). Gilmer-type agreements cannot be viewed in abstract. They are presented to employees and new hires as a condition of employment -- the employer informs employees that unless they sign an agreement to waive their judicial forum for future violations of Title VII in favor of arbitration, they will be fired. Cases under 8(a)(5) are legion that the employer's right to terminate an employee, the reasons for which an employee may be terminated, the process by which an employee is terminated, and the documents controlling employee action which may form the grounds for termination (e.g., plant rules and regulations) are all mandatory subjects of bargaining.58 Accordingly, the notion that a Gilmer-type agreement falls outside the 8(a)(5) bargaining process and that an employer may bypass the collective bargaining agreement and deal directly with individual employees to obtain one, does not seem sound. Moreover, requiring an employer to bargain with the union about the language contained in a Gilmer-type agreement, or whether a Gilmer-type agreement can be presented to a represented employee as a condition of employment will not preclude an employer from eventually being able to place its represented and non-represented employees on the same footing. If requiring a Gilmer-type agreement as a condition of employment is a mandatory subject, it can be bargained to impasse and can eventually be the subject of an employer implementation.59

Accordingly, assuming that the Supreme Court upholds Gardner-Denver, there will be an inherent conflict about whether the employer may bypass the union to obtain a Gilmer-type agreement from a represented employee -- i.e. under Gardner-Denver such an agreement is outside the province of collective bargaining, but under Section 8(a)(5), the terms of a Gilmer-type agreement and the manner in which it is proffered is most likely a mandatory subject of bargaining. This conflict was not addressed in the Court's discussion of Gardner-Denver or Gilmer, and it most likely will not be addressed in Wright.

Obviously, the issue will arise directly only in a context in which an employer believes that the benefit of obtaining Gilmer-type agreements outweighs the risk of incurring an 8(a)(5) charge. Given recent developments restricting Gilmer itself,60 (so that the value of obtaining a Gilmer-type agreement may be reduced), it may become less likely that an employer would risk an NLRA violation. We await Wright; we await a further exposition of Gilmer in light of the Civil Rights Act of 1991; and, we await the possible resolution of this conflict.


Notes:

* Jerome B. Kauff is a partner at Kauff, McClain & McGuire LLP, New York, New York; NYU School of Law, L.L.B. 1961, L.L.M., labor law, 1965.

** Laura L. Putney is an associate at Kauff, McClain & McGuire LLP, New York, New York; Harvard Law School, J.D. 1995.

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1 Section 7 of the NLRA provides that: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

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2 Section 8(a)(1) of the NLRA, provides that: "It shall be an unfair labor practice for an employer . . . (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 [i.e., section 7 rights] of this title."

Section 8(a)(3) of the NLRA, provides that: "It shall be an unfair labor practice for an employer . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization."

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3 Section 8(a)(5) of the NLRA provides that: "It shall be an unfair labor practice for an employer . . . (5) to refuse to bargain collectively with the representatives of his employees."

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4 Central to this question is why, given the available Title VII-type cause of action, an employee would even be interested in an avenue of redress under the NLRA. Suffice it to say that litigation is extremely time-consuming (the median time between the date a federal lawsuit is filed and the commencement of a civil trial is 2.5 years), acrimonious and expensive; the discovery process may provide a platform for intrusion into a victim's personal life; and, litigation provides little possibility of reinstatement or other equitable relief. See Stuart H. Bompey, Michael Delikat & Lisa K. McClelland, The Attack on Arbitration and Mediation of Employment Disputes, 13 Lab. Law. 21, 22 (1997), citing Richard D. Wilkins, Arbitrate or Out!, Cent. N.Y. Bus. J., Feb. 5, 1996, at 1. Although Section 706(g), the remedial provision of Title VII, was explicitly modeled on the remedial provision of the NLRA, see 110 Cong. Rec. 6549 (1964) (remarks of Sen. Humphrey), 110 Cong. Rec. 7214 (1964) (interpretative memorandum by Sens. Clark and Case), the courts, in Title VII litigations, unlike the NLRB in its proceedings, only rarely make use of their authority to reinstate employees.

In NLRB proceedings, in contrast to Title VII litigations: there is no cost in filing a charge; investigation is conducted by an administrative agency having substantial expertise in investigating employment disputes; investigation generally proceeds rapidly and on a specific time table; discovery generally is not permitted; the entire process is without cost to the employee; the remedy of reinstatement and back pay is standard; injunctive relief under Section 10(j) of the Act may be available; and there is an increased possibility of early settlement if the employer is apprehensive that the protected concerted activity may lead to unionization.

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5 While this article addresses only employer sexual harassment, it should be noted that discrimination by a union on the basis of sex violates 8(b)(1); presumably then, sexual harassment by an agent of the union would constitute a violation of 8(b)(1). NLRB v. Local No. 106, Glass Bottle Blowers Assoc., AFL-CIO, 520 F.2d 693, 696 (6th Cir. 1975) (enforcing order of the Board).

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6 See, e.g., NLRB v. Downslope Industries, Inc., 676 F.2d 1114 (6th Cir. 1982) (enforcing Board's decision that employees who were discharged for protesting plant manager's sexual harassment were unlawfully discharged in violation of 8(a)(3)).

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7 United Packinghouse, Food and Allied Workers Int'l Union v. NLRB, 416 F.2d 1126, 1135, cert. denied 396 U.S. 903 (1969).

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8 Meyers Industries, Inc., 268 NLRB No. 493, 494-95 (1984).

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9 Service Merchandise Company, Inc., Case 11-CA-10983-1-2, NLRB GC Advice Memorandum, August 14, 1984, p. 1-2.

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10 NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 839 (1984). See Interboro Contractors, Inc., 157 NLRB 1295 (1966), enf'd 388 F.2d 495 (2d Cir. 1967) (holding that an individual's assertion of a right grounded in a collective bargaining agreement is recognized as concerted activity and therefore accorded the protection of Section 7).

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11 We found no case in which an employee's filing of an EEOC charge was found to be concerted activity because the employee's EEOC charge was reasonably directed toward the enforcement of a collectively bargained right to work in an atmosphere free of discrimination. However, since filing an EEOC charge is itself protected from discrimination under Title VII, it is not surprising that no case has arisen on this issue. Most employees who suffer discrimination based on filing an EEOC charge would invoke the same statute and claim of retaliation under Title VII, rather than file a charge under the NLRA.

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12 Hannah v. Gilman Paper Co. et al., 24 F.E.P.Cas. (BNA) 1141, 1980 WL 209 (S.D. Ga. 1980), citing Jubilee Mfg. Co., 202 NLRB 272 (1973), aff'd mem sub nom. Steelworkers v. NLRB, 504 F.2d 271 (D.C.Cir. 1974).

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13 NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967), citing NLRB v. Erie Resistor Corp., 373 U.S. 221, 228 (1963) (holding that "some conduct carries with it 'unavoidable consequences which the employer not only foresaw but which he must have intended' and thus bears 'its own indicia of intent'").

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14 Id.; Inter-Collegiate Press v. NLRB, 486 F.2d 837, 845 (8th Cir. 1973), cert. denied 416 U.S. 938 (1974).

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15 Jubilee, 202 NLRB 272, 1973 WL 12146, at *2 (NLRB 1973).

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16 Id.

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17 United Packinghouse, 416 F.2d at 1135.

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18 Id.

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19 Id. at 1136.

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20 Id. at 1135.

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21 Id. at 1136.

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22 Id. at 1135 (emphasis original). The employer in United Packinghouse was found to have maintained a policy of discrimination. While sexual harassment generally is individually perpetrated, there are cases in which the size of the employer, the role of the perpetrator in the company, and the level of toleration of the sexual harassment can present a situation which is analogous to a policy of discrimination.

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23 Jubilee, 202 NLRB 272, 1973 WL 12146, at *2 (NLRB 1973).

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24 Id. The Board's additional argument, that continued discrimination in the face of a union's attempts to eliminate discrimination does not discourage union membership any more than a union's ineffective efforts in other areas, is not treated here.

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25 Catharine MacKinnon introduced the theory that sexual harassment of women constitutes illegal sex discrimination in 1979. Catharine A. MacKinnon, Sexual Harassment of Working Women (1979).

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26 In 1986, the United States Supreme Court held that sexual harassment violates Title VII of the Civil Rights Act of 1964. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

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27 Quid pro quo sexual harassment may involve actual or threatened touching, groping, kissing, sexual intercourse, or even rape. See, e.g., Meritor, 477 U.S. at 64 (describing kinds of workplace conduct that may be actionable under Title VII). Forms of sexual touching are not merely physical; there is a legally cognizable difference between a shove on the shoulder and touching a woman's breast.

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28 Sexual harassment is also different from other forms of discrimination in that the conduct which constitutes harassment may, under some circumstances, be welcome. The potential for welcomeness causes victims who do not welcome the conduct to doubt whether the conduct is actually harassment, to fear incurring blame for supposedly encouraging the conduct, and to doubt whether anyone will believe that the conduct was unwelcome if they do complain.

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29 Krista J. Schoenheider, Comment, A Theory of Tort Liability for Sexual Harassment in the Workplace, 134 U. Pa. L. Rev. 1461, 1464-65 (1986).

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30 See Elizabeth A. Glidden, Note, The Emergence of the Reasonable Woman in Combating Hostile Environment Sexual Harassment, 77 Iowa L. Rev. 1825, n.61 (1992); see also Jennifer L. Vinciguerra, Note, The Present State of Sexual Harassment Law: Perpetuating Post Traumatic Stress Disorder in Sexually Harassed Women, 42 Clev. St. L. Rev. 301, 315 (1994).

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31 Vinciguerra, supra note 30, at 315.

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32 Id. at 315. Victims of sexual harassment may experience feelings of detachment or estrangement from loved ones or co-workers, because they find themselves unable to trust others. Id. at 324.

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33 Id. at 320.

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34 Glidden, supra note 30, at n.66.

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35 Vinciguerra, supra note 30, at n.38.

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36 Glidden, supra note 30, at 1833.

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37 Schoenheider, supra note 29, at 1464-65.

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38 Schoenheider, supra note 29, at 1465.

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39 Jollee Faber, Article, Expanding Title IX of the Education Amendments of 1972 to Prohibit Student to Student Sexual Harassment, 2 UCLA Women's L.J. 85, 102 (1992).

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40 Martha Chamallas, Essay, Writing About Sexual Harassment: A Guide to the Literature, 4 UCLA Women's L.J. 37, 46 (1993).

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41 Id.

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42 In Gardner-Denver, the collective bargaining agreement's arbitration clause covered "differences aris[ing] between the Company and the Union as to the meaning and application of the provisions of this Agreement" and "any trouble aris[ing] in the plan." The non-discrimination clause provided that "there shall be no discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry." Gardner-Denver, 415 U.S. at 39-40.

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43 Id. at 51.

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44 Id. at 51, 56.

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45 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 29 (1991); see LaChance v. Northeast Publishing, 965 F.Supp. 177 (D.Mass. 1997) (noting that "Gilmer, at least on its surface, appeared to reverse more than a decade's worth of law which had held that an employee could never be obliged, as a condition of employment, to waive the right to resort to the federal courts to redress violations of various civil rights statutes").

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46 Gilmer, 500 U.S. at 35, citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-27 (1985). The Fifth, Sixth, Ninth, Tenth, Eleventh and the D.C. Circuits, as well as the Southern, Eastern and Western Districts of New York, have all held that, under Gilmer, employees can waive their right to pursue Title VII claims in federal court. Alford v. Dean Witter Reynolds, 939 F.2d 229, 229 (5th Cir. 1991); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 307 (6th Cir. 1991); Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932, 935 (9th Cir. 1992); Metz v. Merrill Lynch, Pierce, Fenner & Smith, 39 F.3d 1482, 1487 (10th Cir. 1994); Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 700 (11th Cir. 1992); Cole v. Burns Int'l Security Servs., 105 F.3d 1465 (D.C. Cir. 1997); Hoffman v. Aaron Kamha, Inc., 927 F. Supp. 640, 644 (S.D.N.Y. 1996); Pitter v. Prudential Life Ins. Co. of America, 906 F. Supp. 130, 139 (E.D.N.Y. 1995); DiCrisci v. Lyndon Guar. Bank of New York, 807 F. Supp. 947, 952 (W.D.N.Y. 1992). However, some courts have held that Gilmer applies to ADEA cases only, and not to Title VII cases. See e.g., Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith Inc., 1998 U.S. Dist. LEXIS 877 (D.Mass. 1998) (holding that Gilmer did not apply to a Title VII claim and an employee's arbitration agreement in a U-4 application -- the standard employment application in the securities industry -- should not preclude an employee from bringing a Title VII lawsuit in federal court).

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46† The Civil Rights Act of 1991 was passed some four months after Gilmer. Since the Act went into effect, several circuit courts have applied the Gilmer holding to Title VII claims. See above citations. However, no circuit court had directly considered Congress's intent in passing the Civil Rights Act of 1991 with respect to the arbitrability of Title VII claims. On May 9, 1998, the Ninth Circuit reviewed the legislative history of the Civil Rights Act of 1991 and determined that in enacting that statute, Congress did not intend to permit mandatory arbitration of Title VII claims. Duffield v. Robertson Stephens & Company, 1998 U.S. App. LEXIS 9284 (9th Cir. 1998). The few district courts that have directly considered the question have split on the issue. See Rosenberg, 1998 U.S. Dist. LEXIS 877 at *37-38 (the 1991 Act precludes compulsory arbitration of Title VII claims); Johnson v. Hubbard, 940 F.Supp. 1447, 1457-58 (D.Minn. 1996) (reaching opposite conclusion); EEOC v. Frank's Nursery & Crafts, Inc., 966 F.Supp. 500, 504 (E.D.Mich. 1997) (mandatory arbitration of Title VII claims does not violate federal law).

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47 Tran v. Tran, 54 F.3d 115 (2d Cir. 1995) (Fair Labor Standards Act); Penny v. United Parcel Service, 128 F. 3d 408 (6th Cir. 1997); Pryner v. Tractor Supply Co., 109 F.3d 354, 365 (7th Cir. 1997), cert. denied, 118 S.Ct. 295 (1997); Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir. 1996), cert. denied, 117 S.Ct. 946 (1997); Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1452-54 (10th Cir. 1997); Brisentine v. Stone & Webster Engineering Corp., 117 F.3d 519 (11th Cir. 1997); Cole v. Burns Intern. Security Services, 105 F.3d 1465, 1478-79 (D.C. Cir. 1997) (dictum).

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48 Id. at 883, 885-86; Wright, 1997 WL 422869 at *2 (4th Cir. 1997). In Austin, the collective bargaining agreement contained a clause specifically stating that the company would comply with all laws preventing discrimination, and contained an arbitration provision which explicitly covered this non-discrimination clause. Austin, 78 F.3d at 879-80. In Wright however, the collective bargaining agreement did not contain a clause prohibiting discrimination; the agreement provided that it "is intended to cover all matters affecting wages, hours, and other terms and conditions of employment," Respondent's Brief in Opposition to Petition for Write of Certiorari, Wright v. Universal Maritime Serv. Corp., 157 L.R.R.M. (BNA) 2640, 1997 WL 422869 (4th Cir. 1997), cert. granted, 118 S.Ct. 1162 (1998), that "no provision . . .shall be violative of any Federal or State law." Brief of Appellant at 6, Wright, 157 L.R.R.M. (BNA) 2640, 1997 WL 422869 (4th Cir. 1997). The arbitration provision covered all matters under dispute between the parties. Reply Brief of Appellant at 4, Wright, 157 L.R.R.M. (BNA) 2640, 1997 WL 422869 (4th Cir. 1997).

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48† For the purposes of this discussion, statutory claims shall refer to federal civil rights statutes prohibiting discrimination, including Title VII, the Americans with Disabilities Act and the Age Discrimination in Employment Act, and shall specifically exclude the NLRA and the Fair Labor Standards Act.

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49 Id. at 883.

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50 Without addressing this tension, the Court in Austin merely observed that "[t]his case arises in the context of a collective bargaining agreement so there may be concern for any tension between collective representation and statutory rights . . . [H]owever, Miss Austin is a party to a voluntary agreement which has specifically agreed to the arbitration of her statutory complaints. That should be enforced." Id. at 883, n.2.

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51 Except, presumably, in the Ninth Circuit. Duffield v. Robertson Stephens & Co., 1998 U.S. App. LEXIS 9284, at *3 (9th Cir. 1998) (employee cannot be required to sign agreement to arbitrate prospective Title VII claims).

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52 This inquiry is particularly important during the term of a collective bargaining agreement, where negotiation on other subjects is not on-going and an employer may prefer to bypass the union and simply require employees to sign Gilmer-type agreements.

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53 Gardner-Denver, 415 U.S. at 51.

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54 "[I]n forging this relationship among potentially competing forums for the effectuation of contractual and statutory rights of individuals and organizations, we have always proceeded with close attention to the policies underpinning both the duty to arbitrate and the provision by Congress of rights and remedies in alternative forums. This Court has always recognized that the choice of forums inevitably affects the scope of the substantive right to be vindicated." U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 359-60 (1971) (Harlan, J., concurring).

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55 Bernhardt v. Polygraphic Co., 350 U.S. 198, 203 (1956).

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56 Gardner-Denver, 415 U.S. at 51.

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57 Actual or suspected sex discrimination, including sexual harassment, is a mandatory subject of bargaining. Star Tribune, 295 NLRB 543 (1989); Westinghouse Electric Corp., 239 NLRB 106 (1978), enfd. as modified sub nom. Electrical Workers IUE, 648 F.2d 18 (D.C.Cir. 1980). Indeed, some courts have ruled that the duty of fair representation imposes upon labor unions an affirmative duty to take corrective steps to ensure compliance with Title VII. Donnell v. GM Corp. and UAW, 576 F.2d 1292 (8th Cir. 1978).

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58 See Hardin, Developing Labor Law, Vol. 1, p. 893 ("[I]f the rule affects an employee's continuation of employment, such as a warning and disciplinary system might, it will be a mandatory subject regardless of the employer's legitimate reason for its promulgation"); Transportation Enters., 240 NLRB 551 (5th Cir. 1980) (altering dress code without bargaining violates § 8(a)(5)); Production Plated Plastics, 254 NLRB 560 (1981) (altering tardiness rule and lunch and break policies without bargaining violates § 8(a)(5)); Sygma Network Corp., 317 NLRB 411 (1995) (revisions to employee handbook including sexual harassment policy, penalty for speeding, mandatory wearing of lifting belts, and payment for lost or damaged uniforms were mandatory subjects, and change in disciplinary consequence of violating alcohol and drug policy was mandatory subject); Western N.Y. Soc'y for the Protection of Homeless & Dependent Children, 309 NLRB 341 (1992) (rule requiring employees to notify a supervisor any time children were taken off premises was a mandatory subject); Hi-Tech Corp., 309 NLRB 3 (1992), aff'd sub nom. NLRB v. Hi-
Tech Cable, 25 F.3d 1044 (5th Cir. 1994) (adoption of a no-tobacco-usage rule was mandatory subject).

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59 Whether or not an employer can bypass the union and force a represented employee to arbitrate a statutory claim (and waive the right to proceed in a federal court), an employer can lawfully limit a represented employee to a statutory claim only, but could not, under Gardner-Denver, limit the employee to a contract claim only. For instance, an employer could insist on bargaining to impasse on a clause which excludes from the just cause and arbitration provisions any action for which an individual employee could seek redress under any federal statute prohibiting discrimination, or on a clause that requires, as a precondition to bringing any grievance alleging conduct violative of a federal statute prohibiting discrimination, that the union provide the employer with a waiver from the aggrieved employee of all statutory claims.

An employer could also attempt to steer employees away from contract arbitration by prohibiting the arbitrator from awarding backpay, reinstatement or other remedies which would accrue solely to an individual employee. Channeling employees away from statutory claims may also be possible; an employer could make arbitration more attractive, and thereby secure an employee's waiver of the statutory claim, by providing expedited arbitration, allowing the employee to select an arbitrator from a limited panel, providing the employee with the right to private counsel in addition to representation by the union, and endowing the arbitrator with the authority to grant statutory remedies.

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60 See supra note 46, †. The Gilmer holding could eventually be (and in some jurisdictions already is) limited to the ADEA. Alternatively, other courts, including the Supreme Court, could agree with the Ninth Circuit and hold that the Civil Rights Act of 1991 manifested a Congressional intent to preclude the enforcement of compulsory agreements to submit prospective Title VII claims to arbitration. See Duffield, supra note 50.

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