US Supreme Court Briefs

B NTED
No.99-1038


IN THE

Supreme Court of the United States

EASTERN ASSOCIATED COAL CORPORATION,

Petitioner,
V.


UNITED MINE WORKERS OF AMERICA, DISTRICT 17; LOCAL 1503, UNiTED MINE WORKERS OF AMERICA,
Respondents.


On Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit


BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF PETITIONER


ROBERT E. WILLIAMS

Counsel of Record
ANN ELIZABETH REESMAN
MCGUINESS NORRIS &
WILLIAMS, LLP
1015 Fifteenth Street N.W.
Suite 1200
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae
Equal Employment Advisory
June 2000 Council


WILSON-EPES PRINTING CO., INC. (202) 789-0096 WASHINGTON, D. 0. 20001
TABLE OF CONTENTS
Page
TABLE OF AUTHORiTIES iii
INTEREST OF THE AMICUS CURIAE 2
STATEMENT OF THE CASE 3
SUMMARY OF ARGUMENT 5
ARGUMENT 7

AN ARBiTRATION AWARD DIRECTING
THAT AN EMPLOYEE BE REINSTATED TO
A SAFETY-SENSlTIVE POSiTION AFTER
TWICE TESTING POSITIVE FOR DRUG USE
VIOLATES A WELL DEFINED AND DOMI-NANT PUBLIC POLICY AND IS, THERE-FORE, UNENFORCEABLE UNDER SEC-
TION 301 OF THE LMRA 7

A. The Policy of Judicial Deference to Labor
Arbitration Awards Does Not Require
Enforcement of an Award that Contravenes
A Well Defined and Dominant Public
Policy 7

B. Existing Laws and Legal Precedents Estab-lish a Well Defined and Dominant Public Policy Against Operation of Dangerous Ma-
chinery by Drug Users 8

C. A Positive Result on a Random Workplace Drug Test Requires the Conclusion that Re-instatement of the Tested Employee to a Safety-Sensitive Position Would Be Con-
trary to Public Policy 10



(i)

Page
13
ii

TABLE OF CONTENTSContinued

Page
11. A RULE REQUIRING JUDICIAL ENFORCE-MENT OF ANY ARBiTRATION AWARD
THAT DOES NOT VIOLATE POSiTIVE
LAW OR COMPEL CONDUCT THAT IS
SPECIFICALLY ILLEGAL, EVEN IF iT
CONTRAVENES AN IMPORTANT PUBLIC
POLICY, WOULD HAVE DISASTROUS
IMPLICATIONS FOR MANY ESSENTIAL
EMPLOYER PROGRAMS, INCLUDING
HARASSMENT-FREE WORKPLACE PRO-GRAMS, AND SHOULD BE REJECTED BY
THIS COURT

CONCLUSION
12

16
iii

TABLE OF AUTHORITIES

FEDERAL CASES

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)
Chrysler Motors Corp. v. International Union, Al-lied indus. Workers, 959 F.2d 685 (7th
Cir.1992) 14
Communications Workers of Am. v. Southeastern
Elec. Coop., 882 F.2d 467 (10th Cir. 1989) 14
Delta Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l,
861 F.2d 665 (11th Cir. 1988) 9
Eastern Associated Coal Corp. v. United Mine
Workers, 66 F. Supp.2d 796 (S.D. W. Va. 1998),
affd, 188 F.3d 501 (4th Cir. 1999), cert.
granted, 120 5. Ct. 1416 (2000) 5, 8, 10 Exxon Corp. v. Baton Rouge Oil & Chem. Workers
Union, 77 F.3d 850 (5th Cir. 1996) 9
Exxon Corp. v. Esso Workers' Union, Inc., 118
F.3d 841 (1st Cir. 1997) passim Exxon Shipping Co. v. Exxon Seamen's Union, 73
F.3d 1287 (3d Cir. 1996) 9
Exxon Shipping Co. v. Exxon Seamen's Union, 11
F.3d 1189 (3d Cir. 1993) 9
Exxon Shipping Co. v. Exxon Seamen's Union, 993
F.2d 357 (3d Cir. 1993) 9
Faragher v. City of Boca Raton, 524 U.S. 775
(1998) 13
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20 (1991) 2
Gulf Coast Indus. Workers Union v. Exxon Co.,
991 F.2d 244 (5th Cir. 1993) 9
Harris v. Forkl ~ft Sys., Inc., 510 U.S. 17(1993) 13
Mentor Say. Bank v. Vinson, 477 U.S. 57
(1986) 13


Page
rv

TABLE OF AUTHORiTIESContinued
Newsday, lnc. v. Long Island Typographical Union, 915 F.2d 840 (2d Cir. 1990)
Stroehmann Bakeries, Inc. v. Local 776, Int'l Bhd. of Teamsters, 969 F.2d 1436 (3d Cir. 1992)
Union Pac. R.R. Co. v. United Transp. Union, 3 F.3d 255 (8th Cir. 1993)
United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987)
United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960)
United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960)
United Steelworkers v. Warrior & Gulf Navi gation
Co., 363 U.S. 574 (1960) WR. Grace and Co. v. Local Union 759, 461 U.S.
757 (1983) Westvaco Corp. v. United Paperworkers Int'l Union, 171 F.3d 971 (4th Cir. 1999) Wright v. Universal Mariti,ne Serv. Corp., 119 5.
Ct. 391 (1998)
v

TABLE OF AUTHORITIES-Continued
Page
REGULATIONS
15
29C.F.R. 1604.11(d) (1999)

MISCELLANEOUS
7, 15
9

8, 13

8
EEOC Policy Guidance: Sexual Harassment, N-9 15-050, reprinted in EEOC Compi. Man. (BNA) N:4031 (March 19, 1990)
Stephen Buehrer, A Clash of the Titans: Judicial Deference to Arbitration and the Public Policy Exception in the Context of Sexual Harassment, 6 Am. U. J. Gender & L. 265 (1998)
7

7-8

8

14

2
STATUTES
Drug Free Workplace Act of 1988,
41 U.S.C. 701 (1987 & Supp. 1999) Section 301 of the Labor-Management Relations
Act of 1947,
29 U.S.C. 185 (1998 & Supp. 1999) Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e et seq. (1994 & Supp. 1999).
42 U.S.C. 2473c (1994 & Supp. 1999)
46 U.S.C. 7702(c)(2) (1999)
49 U.S.C. 20140(1997 & Supp. 1999)
49 U.S.C. 31306 (1997 & Supp. 1999)
2



5,7

3
2
2
2
2

I~ THE


Supreme Q.tourt of the ~nited States

No. 99-1038


EASTERN ASSOCIATED COAL CORPORATION,
Petitioner,
v.

UNITED MINE WORKERS OF AMERICA, DISTRICT 17; LOCAL 1503, UNITED MINE WORKERS OF AMERICA,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit


BRIEF AMICUS CURiAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF PETITIONER


The Equal Employment Advisory Council respectfully sub-mits this brief amicus curiae. Letters of consent from the par-ties have been filed with the Clerk of the Court. The brief urges reversal of the decision below and, thus, supports the position of the petitioner, Eastern Associated Coal Corporation.





'Counsel for the amicus curiae authored the brief in its entirety. No per-Son or entity other than the amicus curiae, its members, or its counsel made a monetary contribution to the preparation or submission of the brief.
2

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council ("EEAC" or the "Council") is a nationwide association of employers organized in 1976 to promote sound programs to end employment dis-crimination. Its membership now includes more than 325 of the nation's largest private sector companies, collectively providing employment to more than 17 million people throughout the United States.

EEAC S members all are employers covered by the Labor-Management Relations Act of 1947, 29 U.S.C. 141 et seq. Many have collective-bargaining agreements and regularly use arbitration processes to settle employment-related issues. EEAC strongly supports arbitration as a means of resolving workplace disputes and has filed amicus briefs supporting enforcement of arbitration agreements in numerous cases. E.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991); Wright v. Universal Maritime Serv. Corp., 119 5. Ct. 391 (1998).

EEAC's members are concerned, however, about arbitration awardslike the one in this casethat clash with important public policies, such as the policy that favors keeping known drug-abusers out of safety-sensitivejobs. Most EEAC members are government contractors subject to the Drug Free Workplace Act of 1988, as amended, 41 U.S.C. 701. Many also are sub-ject to laws designed to eliminate drug use in specific industries, such as commercial motor transportation, 49 U.S.C. 31306, rail transportation, 49 U.S.C. 20140, maritime transportation, 46 U.S.C. 7702(c)(2), and the civil space program, 42 U.S.C. 2473c. Accordingly, most EBAC members have drug-free workplace programs that include strong anti-drug policies backed up by training, counseling, and strict penalties for viola-tions.

EEAC members are concerned that affirmance of the Fourth Circuit's decision in this casewhich upholds enforcement of
3

an arbitrator's award directing an employer to reinstate a man to ajob driving 55,000 pound vehicles on public roads after he had twice failed random workplace drug testswould subvert their drug-free workplace programs and contravene the public poli-cies on which those programs are based.

EEAC members also are concerned that affirmance of the de-cision below could weaken and undercut other employer pro-grams grounded in important public policies, including pro-grams to eliminate unlawful workplace harassment. As em-ployers, EEAC members are, of course, subject to Title VH of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and other laws against job discrimination and harassment based on sex, race and other protected characteristics. In keep-ing with those laws, and with the decisions of this and other courts, EEAC members have adopted harassment-free work-place programs that, like their drug-free workplace programs, include strong policies backed by training, counseling, and strict penalties. As discussed in the Argument that follows, several courts hav&vacated, as against public policy, arbitration awards ordering reinstatement of employees found to have engaged in workplace sexual harassment. EEAC members are concerned that supportive court decisions such as theseand, with them, the credibility of employers' harassment-free workplace programscould be cast in doubt if this Court were to uphold the Fourth Circuit's reasoning in this case.

STATEMENT OF THE CASE

The petitioner, Eastern Associated Coal Corporation ("the Company"), is a mining company bound by a collectivebargaining agreement with the respondents (collectively, "the Union"). The agreement authorizes the Company to discharge employees for 'lust cause," subject to a grievance and arbitra-tion process.

The Company employs a road crew to maintain its mine haul-age roads. Crew members known as Mobile Equipment Opera-

4 5
tors ("MEO's") operate vehicles weighing up to 55,000 pounds on public roadways. The MEO's are required to have commer-cial drivers' licenses and are subject to Department of Transportation ("DOT") regulations requiring, among other things, that they submit to drug and alcohol testing before they first perform "safety-sensitive functions" for the Company, and randomly thereafter.

When the Company selected James Smith to fill a vacant MEO position in March 1996, it subjected him to a random drug test in accordance with the DOT regulations. Smith tested posi-tive for the chemical ingredients of marijuana. As a result, the Company suspended and later discharged him. Smith grieved, and his case went to arbitration. No one challenged the validity of the drug test, but the arbitrator ruled that discharge was too severe. He ordered the Company to reinstate Smith to the MEO job without back pay after a 30-day suspension, and directed that Smith participate in a substance abuse program and submit to random drug testing for the next five years.

Smith passed several random drug tests after that, but in June 1997less than 15 months after his reinstatementhe again tested positive for the ingredients of marijuana. Again, the Company suspended and then discharged him. Again, Smith grieved and the case went to arbitration.

Although the second discharge case went to a different arbi-trator, the outcome was similar. No one questioned that Smith had violated the Company's anti-drug policy, but the arbitrator ordered the Company to reinstate him once again to the safety-sensitive MEO position. This time, the arbitrator required that Smith sign a resignation letter that the Company could accept if he tested positive for drugs a third time. The arbitrator said he was convinced that a "personal/family problem" had caused Smith "this one-time relapse in drug usage" and that he was "confident" that, if Smith had misled him, "the grievant will
make another misstep with drug use and be caught." Pet. App. 28a.

Not content to wait for Smith to make another "misstep with drug use," the Company brought this action under Section 301 of the Labor Management Relations Act seeking to vacate the arbitrator's award. The district court instead granted the Un-ion's motion to enforce the award. Eastern Associated Coal Corp. v. United Mine Workers, 66 F. Supp.2d 796,805 (S.D. W. Va. 1998), affd, 188 F.3d 501 (4th Cir. 1999), cert. granted, 120 5. Ct. 1416 (2000). Based on a review of statutes, regula-tions and judicial precedents, the court found that there is "a well defined and dominant public policy against the perform-ance of safety sensitive jobs by employees under the influence of drugs," and "against the use of controlled substances by those who perform safety sensitive jobs." Id. at 804. The court con-cluded, however, that there is no public policy against reinstat-ing employees to safety-sensitive positions after they have tested positive for drugs. Id. at 805. Consequently, the district court concluded that the public policy exception to the general federal policy of judicial deference to arbitration awards did not apply in this case. Id.

The court of appeals, in a per curiam order, affirmed "on the reasoning of the district court." Pet. App. 4a.

SUMMARY OF ARGUMENT

As it relates to the employment of drug users, the issue pre-sented in this case is a narrow, albeit extremely important one. The issue is not whether there is a well-defined, dominant pub-lic policy against drug use by persons performing safety-sensitive jobs. Everyone agrees that there is. The issue, rather, is whether that policy precludes a court from enforcing an arbi-trator's award directing that a person who repeatedly has failed random workplace drug tests be reinstated to a safety-sensitive jobin effect, to wait and see whether, in the words of the arbi-trator in this case, he "will make another misstep with drug use."

6

Pet. App. 28. Amicus EEAC submits that the order to reinstate Smith was as much at odds with public policy as were Smith's own actions in reporting to his safety-sensitive job with drugs in his system.

Judge Selya of the First Circuit perhaps put it best. Writing for that court in Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 850 (1st Cir. 1997), he observed that "the same public policy which countervails the performance of safety-sensitive tasks while under the influence of drugs also encourages (and, in some cases requires) employers to implement and enforce drug-free workplace programs which include mandatory drug testing of those in safety-sensitive posts," and that "forcing an employer to reinstate an employee who tests positive for drug use pursuant to a test that the employer administers as part of a drug-free workplace program would undermine that policy." Thus, the First Circuit rejected the "wait-and-see" approach, id. at 849, correctly concluding that "it would insult public policy for a court to enforce a contract that requires the ongoing employment in a safety-sensitive capacity of a worker who has scorned the employer's drug-free workplace program." Id. at 851.

Judicial deference to arbitration, although generally a good thing, must not be carried to the extremes the respondents advo-cate in this casei.e., to such lengths that it would require en-forcement of an arbitrator's award that offends public policy, as long as the award does not actually violate "positive law" or compel conduct that is specifically illegal. Such uncritical def-erence would have disastrous consequences, not only for drug-free workplace programs, but also for other valuable programs that employers have adopted to meet their legal obligations and provide safe, nondiscriminatory work environments for their employees. For example, such unfettered deference could put courts in the untenable position of having to rubber-stamp arbi-tral awards restoring sexual harassers to positions in which they could resume preying upon co-workers and subordinates. As the Third Circuit has recognized, deference to arbitration in such
7

circumstances "undermines the employer's ability to fulfill its obligation to prevent and sanction sexual harassment in the workplace." Stroehmann Bakeries, Inc. v. Local 776, Int'l Bhd. of Teamsters, 969 F.2d 1436, 1442 (3d Cir. 1992).

Public policies against drug abuse and sexual harassment in the workplace depend upon more than just proscriptive rules. They also depend upon employers' effective implementation of programs to protect workers against the dangerous and discrimi-natory effects of infractions by others. In this case, the district court defined the policy against workplace drug abuse too nar-rowly. As a result, it upheld an arbitration award that undercut the program on which the employer's drug-free workplace effort depended. We urge this Court to make clear that drug-free and harassment-free workplace programs are themselves protected by important public policies, and that arbitration awards that subvert such programs are not entitled to judicial enforcement.

ARGUMENT

I. AN ARBITRATION AWARD DIRECTING THAT
AN EMPLOYEE BE REINSTATED TO A
SAFETY-SENSITIVE POSITION AFTER TWICE
TESTING POSITIVE FOR DRUG USE VIOLATES
A WELL DEFINED AND DOMINANT PUBLIC
POLICY AND IS, THEREFORE, UNENFORCEABLE UNDER SECTION 301 OF THE LMRA.

A. The Policy of Judicial Deference to Labor Arbi-tration Awards Does Not Require Enforcement of an Award that Contravenes a Well Defined and Dominant Public Policy.

There is no dispute that judicial review of labor arbitration awards under Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. 185, isand should benarrowly limited. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960); United Steelworkers v. Warrior &

8 9
Gulf Navigation Co., 363 U.S. 574(1960); United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960). Nevertheless, courts properly canand shouldrefuse to enforce such awards when the arbitrator's interpretation of a collective-bargaining agreement would violate some "explicit public policy" that is "well defined and dominant, and is to be ascertained 'by refer-ence to the laws and legal precedents and not from general con-sideration of supposed public interests."' WR. Grace and Co. v. Local Union 759,461 U.S. 757,766 (1983)(quoting Muschany v. United States, 324 U.S. 49, 66 (1945)); see also United Pa-perworkers v. Misco, Inc., 484 U.S. 29 (1987).

B. Existing Laws and Legal Precedents Establish a
Well Defined and Dominant Public Policy
Against Operation of Dangerous Machinery by
Drug Users.

In this case, the district court, whose reasoning the Fourth Circuit adopted, conducted the requisite analysis of statutes, regulations and court precedents, and correctly concluded that there exists a "well defined and dominant public policy against the performance of safety sensitive jobs by employees under the influence of drugs." Eastern Associated Coal Corp. v. United Mine Workers, 66 F. Supp.2d 796,804 (S.D. W. Va. 1998). The court also correctly recognized the obversei.e., that "a well defined and dominant public policy exists against the use of controlled substances by those who perform safety sensitive jobs." Id. From a review of the petition and the supporting and opposing briefs filed with this Court, it appears that there is no dispute about the validity of the district court's findings that these interrelated public policies exist, and that they are "well defined and dominant" within the meaning of the WR. Grace and Misco decisions cited above.2


2 As the district court correctly noted, 66 F. Supp.2d at 804, numerous other courts also have recognized these "well defined and dominant" public
The importance of these undisputed public policies can scarcely be overstated. As the First Circuit has said:

At this point in American history, few elements of pub-lic policy command the consensus that attaches to the pol-icy against the use of controlled substances by those whose work potentially imperils others. Judicial decisions, agency regulations, and legislative enactments combine to form a solid phalanx of positive law evidencing a well de-fined and dominant public policy against the performance of safety-sensitive tasks while under the influence of drugs.

Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 849 (lstCir. 1997).

Also uncontested are the basic facts to which these important public policies must be applied in this case. There appears to be no question that the workplace drug test the Company required employee Smith to take was a valid test, or that DOT regula-tions required that the test be given randomly to employees in the Company's safety-sensitive MEO positions. Nor is there any question that Smith, on at least two occasions within about 15 months, reported to work as an MEO in such condition that he was unable to pass that test.

Thus, the narrow but vital issue now presented to this Court boils down to this: Can the arbitrator's award requiring the


policies against performance of safety-sensitive jobs by employees under the influence of drugs, and against use of controlled substances by those who perform safety-sensitive jobs. E.g., Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 847-49 (1st Cir. 1997); Exxon Corp. v. Baton Rouge Oil & Chem. Workers Union, 77 F.3d 850, 855-56 (5th Cir. 1996); Exxon Ship-ping Co. v. Exxon Seamen's Union, 73 F.3d 1287, 1292 (3d Cir. 1996); Exxon Shipping Co. v. Exxon Seamen's Union, Ii F.3d 1189, 1194 (3d Cir. 1993); Union Pac. R.R. Co. v. United Transp. Union, 3 F.3d 255, 262 (8th Cir. 1993); Exxon Shipping Co. v. Exxon Seamen's Union, 993 F.2d 357, 361-62, 364 (3d Cir. 1993); Gulf Coast indus. Workers Union v. Exxon Co., 991 F.2d 244, 252-53 (5th Cir. 1993); Delta Air Lines, Inc. v. Air Line Pilots Ass'n, Int~l, 861 F.2d 665, 674 (11th Cir. 1988).

10 11
Company to reinstate Smith to the safety-sensitive MEO job af-ter he repeatedly had failed the drug test be reconciled with the "well defined and dominant" public policies that the district court correctly identified? The district court concluded that the award could be reconciled with those policies, because "the DOT Regulations do not express an explicit, well defined public policy permanently enjoining the employment of commercial motor vehicle drivers who test positive for drug use." 66 F. Supp.2d at 804-5. We submit, however, that in so holding, the court took too nan~ow a view of the policies involved. It failed to follow those policies through to their logical conclusion, as discussed below, and thus ultimately reached a result that is at odds with both public policy and law.

C. A Positive Result on a Random Workplace Drug Test Requires the Conclusion that Reinstatement of the Tested Employee to a Safety-Sensitive Posi-tion Would Be Contrary to Public Policy.

The district judge's principal error in this case was in failing to recognize that the public policies he had correctly identi-fiedi. e., the policy against performance of safety-sensitive jobs by employees who use drugs, and the corollary policy against use of drugs by employees who perform safety-sensitive jobsdo not stand in isolation. Rather, they are dependent on the development, implementation, and effective enforcement by employers of programs to discourage workplace drug use and protect employees and the public against the dangers of drug-related workplace accidents. These vital programs are under-mined and eviscerated when a worker with a history of drug abuse is reinstated to a safety-sensitive position.

The First Circuit has recognized the interdependence of drug-free workplace policies and the programs essential to their ef-fectuation:

The pertinent public policy dictates not only that em-ployees refrain from performing safety-sensitive jobs while
under the influence of drugs, but also that employers develop (and enforce) programs designed to discourage such activity.... [T]he same public policy which countervails the performance of safety-sensitive tasks while under the influence of drugs also encourages (and, in some cases, re-quires) employers to implement and enforce drug-free workplace programs which include mandatory drug testing of those in safety-sensitive posts.

Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d at 849-50. Consequently, that court concluded:

Consistent with this enhanced understanding of the dis-cerned public policy, we hold that forcing an employer to reinstate an employee who tests positive for drug use pur-suant to a test that the employer administers as part of a drug-free workplace program would undermine that policy. It makes no sense to construe public policy as encourag-ingand in some cases mandatingemployers to estab-lish and enforce drug-testing programs, yet to preclude them from taking decisive action against those employees who test positive.

Id. at 850. Several other circuit courts have reached the same correct conclusion and have, therefore, refused enforcement of arbitrators' awards ordering reinstatement of employees who had failed drug tests. See cases cited at footnote 2, supra.

As the First Circuit observed, the public policy that encour-ages (and in some cases, requires) employers to adopt and enforce effective drug-free workplace programs is incompatible with a "wait-and-see" approach. Id. at 849. In contrast, the ar-bitrator in this case was willing to expose employee Smith, his employer, his co-workers and the public to the risk that Smith would take a third "misstep with drug use" if reinstated to his job operating a 55,000 pound vehicle on the public roads. As the First Circuit observed, that approach is unacceptable because of the likelihood that the "misstep" will come to light through a tragic accident:

12

The notorious mishap involving the Exxon Valdez, which produced vast environmental devastation, highlights the core problem associated with this "wait-and-see" ap-proach. If we have learned anything from such catastro-phes, it is that employers must act affirmatively to avoid drug-related accidents rather than wait passively for such accidents to happen.

Id. Thus, as that court recognized, it follows that "the well de-fined and dominant public policy which we have identified does not require an employer to await the occurrence of an accident before discharging an employee who tests positive for drug use." Id. It also follows, we submit, that an arbitrator's award directing that an employee who repeatedly has failed random workplace drug tests be placed back in a safety-sensitive job to wait and see whether he will make another "misstep with drug use" is contraly to public policy and should not be judicially en-forced.

II. A RULE REQUIRING JUDICIAL ENFORCEMENT OF ANY ARBITRATION AWARD THAT
DOES NOT VIOLATE POSITIVE LAW OR COM-PEL CONDUCT THAT IS SPECIFICALLY ILLE-GAL, EVEN IF IT CONTRAVENES AN IMPOR-TANT PUBLIC POLICY, WOULD HAVE DISAS-TROUS IMPLICATIONS FOR MANY ESSEN-TIAL EMPLOYER PROGRAMS, INCLUDING
HARASSMENT-FREE WORKPLACE PROGRAMS, AND SHOULD BE REJECTED BY THIS
COURT.

Insofar as it is premised on the notion that a labor arbitrator's award is entitled to judicial enforcement even if it offends pub-lic policy, as long as it does not actually violate "positive law" or require conduct that is specifically illegal, the decision below carries the fundamentally sound idea of deference to arbitration too far. While a court should not substitute its judgment for an arbitrator's based on "an assessment of 'general considerations
13

of supposed public interests,"' United Paperworkers Int'l Union v. Misco, 484 U.S. at 43 (quoting WR. Grace, 461 U.S. at 766), neither should a court allow itself to be used as an instrument to subvert important public policies by weakening or countermand-ing mechanisms essential to their implementation.

Such unthinking deference to arbitration awards would jeop-ardize not only drug-free workplace programs, but also other workplace programs adopted by employers to effectuate impor-tant public policies. Of particular concern to the EEO-conscious employers represented by this amicus is the impact that such extreme deference to arbitration awards could have on programs to rid the workplace of unlawful harassment.

Like the public policy against allowing persons with a history of drug abuse to work in safety-sensitive jobs, there clearly ex-ists a well-defined and dominant public policy against allowing persons with a history of sexual or racial harassment to work in positions in which they can prey upon vulnerable co-workers, subordinates and others. See Mentor Say. Bank v. Vinson, 477 U.S. 57(1986); Harris v. Forkl ift Sys., Inc.,510 U.S. 17(1993). See also EEOC Policy Guidance: Sexual Harassment, N-9 15-050, reprinted in EEOC Compl. Man. (BNA) N:403 1 (March
19, 1990). Indeed, the EEOC Guidelines make employers liable for sexual harassment between co-workers when the employer knew or should have known of the harassment and failed to take "immediate and appropriate corrective action." 29 C.F.R. 1604.11(d) (1999).

This Court's decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), added strong encouragement to employers to adopt harassment-free workplace programs to meet their obligations under Title VII. Essential ingredients of such programs include a policy against unlawful harassment, training to ensure that employees understand the policy's meaning and conse-quences, and follow-up mechanisms to ensure that complaints

15
14
are investigated promptly and appropriate steps are taken to pre-vent recurrence of harassment when it is found.

Reinstatement of an employee who has committed egregious or repeated acts of sexual or racial harassment directly subverts public policy by impairing the environment in which innocent co-workers and subordinates must work. "[lit subjects the vic-tim of past harassment to the potential of on-going abuse and subjects the employer to continuing liability." Stephen Buehrer, A Clash of the Titans: Judicial Deference to Arbitration and the Public Policy Exception in the Context of Sexual Harassment, 6 Am. U. J. Gender & L. 265, 287-88 (1998). It also sends a sig-nal to employees that the employer's anti-harassment policies are not to be taken seriously. Thus, reinstatement of such an individual can have devastating effects on the credibility and effectiveness of an employer's harassment-free workplace pro-gram.

Employers' concerns that excessive deference to arbitration could undermine their harassment-free workplace programs are not merely speculative, but are based on actual experience re-flected in several reported court decisions. For example, in Westvaco Corp. v. United Paperworkers Int'l Union, 171 F.3d 971 (4th Cir. 1999), the court upheld an arbitrator's decision to reinstate an employee who repeatedly had sexually harassed a co-worker. The court reasoned that the general policy against sexual harassment was not a sufficient basis to deny enforce-ment of the reinstatement award.3

The fallacy that has led some courts to enforce arbitration awards reinstating sexual harassers is similar to the fallacy that



"At least two other circuits have enforced arbitrators' awards reinstating employees discharged for violating their employers' policies against sexual harassment. See Chrysler Motors Corp. v. International Union, Allied Indus. Workers, 959 F.2d 685 (7th Cir. 1992); Communications Workers of Am. v. Southeastern Elec. Coop., 882 F.2d 467 (10th Cir. 1989).
led the district court in this case to enforce an award reinstating a drug-abuser to a job driving 55,000 pound vehicles on the public roads. The problem lies in failing to recognize that effec-tuation of the public policy against workplace harassment (or drug use) depends on effective implementation of the em-ployer' s harassment-free (or drug-free) workplace program. An award that subverts the employer's program inevitably under-mines the public policy, as well.

The Third Circuit noted this interrelationship between poli-cies and programs in the context of sexual harassment in Stroehmann Bakeries, Inc. v. Local 776, Int'l Bhd. of Teamsters, 969 F.2d 1436 (3d Cir. 1992), when it refused to enforce an ar-bitration award ordering reinstatement of an accused sexual ha-rasser without a determination that the harassment did not, in fact, occur. The court observed that an award that "would allow a person who may have committed sexual harassment to continue in the workplace without a determination of whether sex-ual harassment occurred" was contrary to public policy, because it "[didi not discourage sexual harassment" but 'iii jinstead, undermine[dI the employer's ability to fulfill its obligation to
prevent and sanction sexual harassment in the workplace." Id. at 1442. See also Newsday, Inc. v. Long Island Typographical Union, 915 F.2d 840, 845 (2d Cir. 1990) (arbitrator's award di-recting reinstatement of sexual harasser held unenforceable as against public policy because, "Ilalbove all, it prevents [the em-ployerl from carrying out its legal duty to eliminate sexual har-assment in the work place.").

Accordingly, we urge this Court to reject the extreme position advocated by the respondents in this casei.e., that deference to labor arbitration requires enforcement of any arbitration award that does not, itself, actually violate "positive law" or compel unlawful conduct, even though the award may offend a well defined and dominant public policy that is based in law.

16

CONCLUSION

For the reasons stated above, the decision of the court of ap-peals should be reversed, and this case should be remanded with instructions to the district court to grant the employer's petition to vacate the arbitration award.


Respectfully submitted,


ROBERT E. WILLIAMS
Counsel of Record
ANN ELIZABETh REESMAN
MCGUINESS NORRIS &
WILLIAMS, LLP
1015 Fifteenth Stieet, N.W.
Suite 1200
Washington, D.C. 20005
(202)789-8600
Attorneys for Amicus Curiae
Equal Employment Advisory
Council
June 2000

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