Employers in a union environment may think that all employees have to follow the collective bargaining agreement to resolve discrimination claims. But if that process is tainted or woefully inadequate, employees can sue under California’s Fair Employment and Housing Act (FEHA) instead.
That’s a good reason to have an experienced labor attorney review any alternative dispute resolution processes. Your lawyer may be able to suggest the best language to bargain for in the next round of labor negotiations.
Recent case: Masteneh Ahmadi-Kashani worked as a research assistant in the cardiology department at the University of California School of Medicine from 1997 to 2004. Trouble began when a new chief of cardiology took over in late 2003 and allegedly began sexually harassing Ahmadi-Kashani.
What happened next shows exactly how not to handle a sexual harassment complaint.
Ahmadi-Kashani says she reported the harassment to another doctor, who told her there was nothing he could do about it. She then went to the office manager, who suggested that if it was a real problem, she should find another job. In December 2003, she complained to the dean of the School of Medicine, who told her he didn’t want to get involved. He told her she could go to the HR office. Meanwhile, Ahmadi-Kashani was laid off due to “cessation of funding.”
She initiated a collective bargaining grievance. At the hearing, neither Ahmadi-Kashani nor her attorney was allowed to ask questions.
Instead, they were told to tell their sides of the story while the alleged harasser sat by silently. Then a “decision” was rendered: Since her verbal description of events was the only evidence, she had no case.
Although she could have taken the case one step further to binding arbitration, she instead sued in court for FEHA violations.
The university argued that once she had started the union’s grievance process, she had to complete it or she was bound to the “decision” from the hearing.
The Court of Appeal of California called this “justice á la Lewis Carroll” and concluded the process was as tainted as Alice’s trial in Wonderland. It said Ahmadi-Kashani was free to abandon what was essentially a useless process and go to court instead.
Although the court was loath to discourage internal grievance resolutions, it concluded that this one was so bad that no one smart enough to be hired would use it.
The court added that Ahmadi-Kashani didn’t have to appeal the “decision” and could simply walk away from the tainted process and into court to start over. (Ahmadi-Kashani v. Regents of the University of California, No. G038103, Court of Appeal of California, 4th Appellate Division, 2008)
Final note: The collective bargaining agreement in this case provided for voluntary arbitration.
Some collective bargaining agreements try to make their processes binding and mandatory. Binding employees to the process is possible, but requires that the agreement (1) state explicitly that it is intended to apply to all legal claims and (2) provide a fair process.
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