It’s not funny and it can cost you your job

March 16, 2021

A UTLO represented Superintendent thought it would be funny to give an hourly a quick poke in the butt with a rod tensioner.

The hourly wasn’t amused.The Authority wasn’t amused. The Arbitrator wasn’t amused. This wasn’t funny, it was harassment. The Authority tried to fire the Superintendent. The UTLO saved his job through arbitration but it cost the Superintendent a thirty-day suspension and a final warning.

Sexual harassment law is rapidly evolving to provide greater protection for employees claiming be have been harassed. There are two basic types of sexual harassment. The first, is“quid pro quo” which means a reward for engaging in sexual conduct with the harasser or punishment for refusing to do so. The second is the “hostile work environment” which means that the workplace contains acts of a sexual nature.In 1964, the first nationwide prohibition on gender discrimination was passed.Later, the Supreme Court recognized that harassment because of a person’s gender is a form of gender discrimination. The court, later, held that harassment by a person of the same gender as the victim is a form of sexual harassment.  The court, however, was concerned about the 1964 law being converted into a “civility code” and held repeatedly that a sexually hostile working environment would only exist where the conduct was “severe” and “pervasive.” This meant employers would only be liable for the most obvious acts of harassment. If you received sexual harassment training, you may be familiar with the terms “severe” and “pervasive.”

This was state of the law for several decades and is still the law under federal anti-discrimination statute.  After the election of an alleged sexual harasser as President of the United States and a series of high profile sexual harassment allegations against powerful captains of industry, the New YorkState legislature torpedoed the severe and pervasive limitation. Now, a single act of sexually offensive conduct can create liability. And, unlike the federal law, New York State makes the harasser, not just the employer, liable for the offending conduct.

Even before these recent changes, moreover, employers were permitted to create their own internal rules to punish offensive conduct regardless of the legal technicality of what would create liability for the employer.  This brings us back to the “poke.”

Transit’s anti-harassment policy does not require an act to be severe or pervasive to be subject to discipline. As a result, you can be disciplined for a single inappropriate act.And, that you didn’t intend to offend is irrelevant. What matters is what an average person would find offensive and people are become much more aggressive in fighting these poor attempts at humor in the workplace and the law and employers are become more willing to punish and punish severely such acts. As the arbitrator said, this poke, even though it lasted for only a second, was “serious misconduct” warranting a “serious penalty.”

UTLO has a remarkable success rate in defending its members in disciplinary cases.  This success, however, should not be taken for granted and we strongly urge our members be careful in their words and conduct, to remember that Transit considers them managers, that they are professionals and should act as professionals at all times.