The NAM filed an amicus brief urging the Supreme Court to review an 11th Circuit ruling that allowed a labor arbitrator to reinstate an employee who had been fired for racially harassing a third-party worker. The arbitrator ruled that since there was no written policy prohibiting racial harassment of outsiders, an employee could not be fired for doing so. This decision undermines an employer's ability to comply with antidiscrimination laws.
Our brief argued that the case involves situations where collective bargaining agreements are in effect. Employers needs to be able to root out racial harassment, and arbitrators should respect not only the at-will employment doctrine but also the business judgment rule. Employment policies need not memorialize in writing every conceivable standard of behavior, including compliance with the thousands of laws and regulations that apply to personal behavior of employees.
Unfortunately, the Court on 2/19/02 declined to hear the appeal.