Asking Co-Workers Out is Not Sexual Harassment: Arbitrator Reinstates Terminated Officer

In a decision which brings a rational approach to a very emotional issue, a Northern California Arbitrator, David Nevins, reinstated an East Bay Regional Parks Police Officer following his dismissal from the Department for alleged sexual harassment. The Department contended that the officer violated the Department’s sexual harassment policy by repeatedly asking female dispatchers out for dates. The officer challenged the termination and was represented by Martin Gran of Carroll, Burdick, and McDonough. Following a three-day hearing and the filing of post-hearing briefs, the Arbitrator reduced the termination to a four-week suspension and awarded full back pay, with the exception of the 30 days.

The case involved three dispatchers. The officer asked one of the dispatchers out six to eight times over a four-month period. The dispatcher declined these invitations but waited months to finally tell him in no uncertain terms that she was not interested in dating him. Once she made this clear, the officer never asked her out again. She never complained to the Department about the invitations, nor did she wish to become involved in the Department’s investigation of the officer.

The officer’s relationship with the second dispatcher is more complicated. The two had known each other for years, played on the same softball team, socialized together in group settings and spoke regularly off-duty. Unbeknownst to the officer, this dispatcher apparently tired of these contacts, and eventually blocked the officer’s (and several other people’s) numbers from being able to call her. She never complained to the Department about the officer, and she, like the first dispatcher, did not wish to cooperate with the investigation.

The officer’s conduct with the third dispatcher was somewhat more serious. In that case, he parked at a location where he knew the dispatcher would travel on her way home after work following her swing-shift assignment. When she did not recognize his patrol car, he pulled into traffic and followed her for a minute or two. When she saw the patrol car behind her, she pulled off into a residential area. The officer hit his emergency lights quickly and she stopped.

The two chatted for a few minutes, and before they parted, the officer asked the woman if she would like to get a drink sometime – and offer the dispatcher declined. She, likewise, did not complain to the Department about the incident, in fact, she laughed about the incident with co-workers the following day. The officer never asked her out again.

The Department’s sexual harassment policy is carefully worded to prohibit “[un]welcome sexual advances, requests for sexual favors or other verbal or physical conduct [which] interferes with the employee’s work performance [or] creates an intimidating, hostile work environment.”

After noting that the officer basically asked these women out for dates without making any overtly sexual reference, lewd remarks, sexual jokes, etc., the Arbitrator ruled that asking a co-worker out for a date does not constitute conduct of a “sexual nature.” The Arbitrator stated:

Since it still is lawful, natural, and expected within our population for men and women to date one another, and since there is nothing in our civil rights laws that seemingly restricts such natural interaction, it is difficult to simply lump the act of requesting someone out for a date into the regulated conduct of a “sexual nature.” Indeed the Employer allows for dating among its employees, which obviously and implicitly allows for asking another out for a date, and it is a little difficult to logically conceive of the Employer allowing with one hand such activity but with the other hand prohibiting it.

The officer and his counsel vigorously argued that the officer’s invitations in no way affected the dispatchers’ ability to perform their jobs – one of the main factors listed in the policy. Not only did none of the dispatchers complain, they’all testified that the invitations were merely an annoyance and that they did not affect their ability to perform their jobs. The Department’s sexual harassment policy mirror state and federal law in that those sexual harassment statutes do not protect against every workplace annoyance; they only prohibit conduct severe enough to significantly affect a person’s access to or ability to perform his or her job.

Again, the Arbitrator agreed; Being bothered and annoyed by such matters, or concerned with how they generally interact [with the officer], however, are not unlike feelings commonly generated by any number of personality differences in the workplace. Having such feelings do not, however, equate to feeling intimidated or offended, lest we ignore the differences between not only feelings but the words we use to describe them.

In the final analysis, the Arbitrator simply did not see the conduct as rising to the level of termination, and he ordered the officer reinstated. The Arbitrator did fault the officer for using poor judgment in using his emergency equipment to stop the dispatcher late at night, and awarded a four-week suspension for the conduct. The Arbitrator apparently followed the Grievant’s suggestion that a short suspension would be all that the facts could possibly warrant. The award states that the suspension was “perhaps more than ample.”