Lawyers,gender and grievance arbitration outcomes

Why should the grievant’s gender or the presence of legal representation affect arbitration outcomes? The “chivalry hypothesis” holds that male arbitrators will tend to favor female grievants; its theoretical mirror image, the “evil woman” hypothesis, suggests that female grievants suffer a comparative disadvantage vis-à-vis similarly situated males. However, neither hypothesis (both drawn from criminologists’ studies of judicial sentencing patterns) applies all that well to the grievance arbitration process where, unlike in the court system, the parties themselves select their decision-maker. This is not to say that the grievance arbitration process is free of gender discrimination, only that arbitrators are probably not the source of any pro- or anti-female bias which may be uncovered.     

Arbitration of accommodation in US workplaces: employee,stakeholder and human resources characteristics

This research examines how arbitrators consider accommodations for employees with physical and mental illnesses. Unlike other recent research on the subject, the authors specifically and purposely draw their sample from recent US arbitration cases—2015 to 2018, n = 209. Additionally, using content analysis software, NVivo , the case characteristics were autocoded, and the case outcomes were manually coded. Using logistic regression, the following model was developed to predict the odds of case outcomes: disability, injury, discrimination, retaliation, absence and reinstatement. The Cox and Snell and Nagelkerke analysis indicates that our model accounts for approximately 15.6 to 21.5 per cent of the variance, with 33.3 per cent of the individual and split arbitration cases outcomes and 91.2 per cent for organisation arbitration cases correctly predicted. The model predicts 71.2 per cent of the cases.     

The Effects of Mandatory Arbitration of Employment Discrimination Claims: Perceptions of Justice and Suggestions for Change

The ability of employers to require employees to submit claims of discrimination to final and binding arbitration in lieu of exercising their statutory rights represents a significant change in public policy. The methods traditionally used by enforcing agencies to investigate discrimination claims provide assistance and intervention that redress power asymmetries between employees and employers. Depriving employees of these enforcement mechanisms and requiring them to use arbitration may have adverse effects on perceptions of justice, both in procedural and distributive terms. We propose that mutuality, equality, and remediality are issues that must be addressed in situations of mandatory arbitration. We also suggest that mandatory arbitration may have other effects including expanding the scope of issues well beyond discrimination claims.     

Exploring Discrimination on the Basis of International Experience: The Colonial Mindset Bias in the Context Of Pakistan

Discrimination in the labor market has historically been associated with gender, race, ethnicity, and age. This article introduces another basis of discrimination—international experience—which may exist in developing countries because of a colonial mindset. The research is an exploratory study, based on an analysis of in‐depth semistructured interviews with 8 HR managers, 19 employees with international experience, and 24 employees without international experience (N = 51) working in the oil and gas and telecom sectors of Pakistan. Results indicate some initial evidence of a bias, and hence discrimination during recruitment for entry‐level positions. Findings also indicate that international experience may contribute to enhanced employment opportunities, career progress, and higher compensation at senior‐level leadership positions, leaving those without such experience at a disadvantage. While in some cases international experience may be a genuine occupational requirement (GOR), further research is needed to identify whether this is in fact a GOR for senior level positions in all types of organizations or indirect discrimination under the guise of GOR. Recommendations for HR managers and organizational leaders are also set out, which can be applied in practice to foster equality of opportunity in the workplace. © 2017 Wiley Periodicals, Inc.     

Arbitrators’ characteristics and decision-making records,gender of arbitrators and grievants,and the presence of legal counsel as predictors of arbitral outcomes

Labor arbitration helps define employee and employer rights and responsibilities. Evidence indicates that the advocates at arbitration tend to concern themselves with issues unrelated to the facts of the case or to the rights and responsibilities of the parties involved. More specifically, before the hearing, management and union advocates often dwell on issues such as the importance of the arbitrators’ personal characteristics and their decision-making history, the likely effects of the gender of arbitrators and grievants, and whether the presence of legal counsel impacts the arbitral outcomes. The purpose of this study is to examine whether these non-case-related factors actually can be associated with differing awards by arbitrators. This study may be the first in which the arbitrators’ decision-making history (award orientation) is a primary issue. Of all the issues studied, the arbitrator’s disciplinary award orientation is the only one with a consistent impact on arbitral outcomes. We conclude that the energy and resources expended by the advocates concerning non-case-related issues would be better spent in preparing their cases for arbitration and in examining the potential impact of arbitration on the rights and responsibilities of management and its employees.     

Who is at Greatest Risk of Work-Related Discrimination—Women, Blacks, or Homosexuals?

This study was developed to examine whether bias against women, blacks, and homosexuals emerges in predictable patterns when raters are presented with hiring scenarios. We instructed the research sample to hire six of eight candidates for an accounting position. Eight candidates were necessary to offer the full range of gender, race, and sexual orientation combinations. Requiring the research sample to select six of the eight candidates meant that each respondent would have to discriminate by eliminating the two candidates they considered the least desirable. We found that a black, male homosexual is the most likely target of discrimination and the white, female heterosexual is the least likely to be discriminated against. If it develops that these findings hold across a wide range of work-related decisions and samples, such results would support the argument for maintaining affirmative action for blacks and extending civil-rights protection to gays and lesbians.     

The “I quit” syndrome

Managements, unions, and arbitrators have been plagued by a very simple but long-standing problem involving what might be termed a routine human resource action. The problem stated simply is: When is a quit a quit? Where employees are represented by a bargaining agent, the company cannot always be sure that a “quit is a quit.” It is clear that employers who do not understand the “I quit” syndrome are in an uncertain position with respect to handling such problems. The authors have also discovered that unions do not understand the “I quit” syndrome either and at times go to arbitration with all of its attendant costs when the employee has actually “quit.” The purposes of this article are to study how arbitrators have ruled, to establish the principles involved in this little-known area of union/management relations and to provide parties to such cases with information to guide them. Arbitrators have upheld grievances and reversed company actions often enough that there is a need to clarify what is a “quit” as well as a need to clarify what the rights are of both parties under the collective bargaining agreement. The authors found that many managements use the “I quit” syndrome as a substitute for disciplinary action. It is clear from arbitral decisions that it is best from the company point of view to allow the disciplinary system to handle problem employees. The authors also found that reasonable resignations by employees were upheld by arbitrators. If employers carefully handle and document employee resignations, the resignations will stand. Further, it is clear that employers must issue clear policy statements concerning resignations; this includes avoiding resignations under duress. Finally, parties to collective bargaining agreements need contract language defining a quit.     

The continuing need for affirmative action

Affirmative action is defined as the steps taken to end the absence in jobs, schools, and honored positions of members of groups that have been subordinated. Its purpose is to reduce discrimination, to reduce income disparities between groups, and to promote diversity by gender and race in every role and activity. The persistence of occupational segregation by sex and race to a degree that cannot be explained by differences in qualifications or voluntary behavior testifies to the need for further action. Alternatives to affirmative action, such as helping people regardless of race or sex from disadvantaged backgrounds, “just enforcing the law against discrimination”, or waiting for educational improvements to bring groups better qualifications would not do the job affirmative action is designed to do.     

Review of no-fault absenteeism cases taken to arbitration, 1980–1989: A rights and responsibilities analysis

No-fault absenteeism control programs represent an emerging counterpoint to traditional misconduct-based approaches. By altering the policies governing absence in the work place, the rights and responsibilities of both the employee and employer may be modified. This article examines the arbitral standards applied in the disposition of grievances arising under no-fault absenteeism plans. Arbitration cases from 1980 to 1989 are analyzed; a taxonomic structure for reviewing arbitrator rulings on the unilateral imposition of no-fault programs, as well as discipline and discharge arising under no-fault policies, is developed. While advocates of no-fault plans have asserted that arbitrators will embrace these plans, the results of this analysis indicate that arbitrators will infuse standard elements of reasonableness and just cause into no-fault policy. Trends in arbitral standards in absence cases, policy-making strategies for managements and unions, as well as implications for the rights and responsibilities of employees and employers are outlined.     

Cultural Discrimination: The Reasonable Accommodation of Religion in the Workplace

Reasonable accommodation of religious practices continues to be a problem in the workplace. Recent Supreme Court decisions have enabled employers to exclude employees from the decision-making process of what constitutes a reasonable accommodation of their religious beliefs through the de minimis standard. In this article it is argued that, in most cases, the reason employers have been allowed to discriminate against these employees is the contentious nature of minority religious beliefs with the mainstream religious culture. Because judges view discrimination based on religious beliefs as distinct from the other reasons for discriminatory practices, such as race, sex, or national origin, it appears unlikely that adherents to minority faiths will face any abatement of discrimination in the workplace.     

Arbitration of Statutory Employment Discrimination Claims in a Nonunion Environment: A Guide to Procedural Fairness

The previous decade has seen an increasing trend toward the use of arbitration to resolve statutory employment discrimination claims. The enforceability of most private sector arbitration agreements arising in a nonunion setting is reviewable under the Federal Arbitration Act. Such arbitration agreements are most often created by management and become a condition of employment. To represent a feasible alternative to court litigation, employers and employees must have confidence that outcomes achieved through the arbitration process will be enforced by the courts as final and binding upon the parties to the dispute. The extent to which an arbitration agreement adequately protects the procedural and remedial rights of the participants is an important issue affecting the probability that a court will enforce the outcome of an arbitration procedure. This paper reviews guidelines provided by the courts and practitioners to aid in the design of an effective and legally enforceable arbitration procedure to resolve statutory employment discrimination claims arising in a private sector nonunion environment.     

An arbitrator looks at grievance arbitration

This article is an overview of the major considerations that are crucial in the thought processes of an arbitrator in deciding a grievance-arbitration case. An arbitrator’s first obligation is to interpret and apply provisions of the labor agreement in a manner consistent with the intent of the parties. Past practices or precedents are often considered by arbitrators to assess the intent of the parties and to decide certain issues. The most subjective area confronting arbitrators is that of fairness and equity, primarily in discipline/discharge matters where just cause must be demonstrated. Most arbitrators apply the preponderance of evidence standard as the required burden of proof in deciding equity matters. Consistency in handling of prior cases and documentation are especially important in an arbitrator’s weighing of evidence. In summary, grievance arbitration is an extension of democratic due process to the industrial and business world. This article was prepared for presentation at a seminar sponsored by the American Management Foundation, May 6–7, 1993 (Chicago, Illinois). It is a revised, updated version of an article that originally appeared in the October, 1978 issue ofPersonnel Journal.     

Sources of delay in grievance arbitration

This study investigates the sources of delay in the grievance arbitration process. Three delay components were examined: delay in proceeding to hearing, delay from hearing to written award, and overall delay. Multiple regression analyses showed that the arbitration hearing format (tripartite panels versus sole arbitrators), the use of legal counsel, and individual arbitrators themselves, were all significant sources of delay. Further, over the twelve-year period examined in this study, the average grievance arbitration case lengthened by about 7.9 days per annum.     

The “Iron Law of Paternalism” in Employee Grievances and Arbitration? A Comparison of Disciplinary and Nondisciplinary Cases

In the criminology literature, the iron law of paternalism suggests that women receive less serious sanctions in the judicial system. This examination of three years of grievance outcomes (n= 1216) and arbitration outcomes (n= 1146) tests this iron law in the context of organizational disciplinary and dispute resolutions. These data, across several levels of outcomes (win, lose, compromise), controlling for the severity of grievances (disciplinary/nondisciplinary) and arbitrations (termination/nontermination) provide no support for the paternalistic thesis. Moreover, we find no support for the paternalistic thesis with regard to either the incidence or length of suspensions as a function of gender.     

Arbitral standards in medical screening grievances

Recent media attention to employer's growing use of tests to detect the AIDS virus among employees has revived a longstanding public debate over the approriateness of workplace medical screening. Under current statutory and common law, employers are given considerable latitude to implement medical screening policies. Although Rothstein (1984) has speculated that collective bargaining may provide the strongest protection currently available against the misuse of medical screening by employers, there has been no comprehensive analysis of such protections. This article begins to address that gap in the literature by investigating the standards commonly applied by arbitrators in deciding grievances protesting adverse personnel allocation decisions that allegedly have been based, at least in part, on medical screening.An earlier version of this paper was presented at the 1989 Annual Conference of the Council on Employee Responsibilities and Rights, and was published in the Conference Proceedings.     

Nondiscrimination Policies and Sexual Identity Disclosure: Do They Make a Difference in Employee Outcomes?

Legal discrimination on the basis of sexual orientation still persists in most parts of the United States. One avenue of localized protection has been corporate policies against discrimination on the basis of sexual orientation. In a sample of N = 65 gay men, this paper examines whether differences exist on perceived workplace hostility, turnover intentions, perceived promotion opportunity, job and supervisor satisfaction and supervisor–subordinate relationship quality between the reports of men in organizations that have non-discrimination policies and those employed where they do not. Additionally, this paper examines if disclosure of sexual orientation to a supervisor affects the same variables. Findings suggest that the presence of a non-discrimination policy influences affective variables whereas disclosure influences career variables. Limitations of the study and directions for future research are discussed.     

Broadening the Definition of Unlawful Retaliation Under Title VII

Title VII retaliation cases have become a larger part of the Equal Employment Opportunity Commission (EEOC) caseload, and this development should be a growing concern for business. By addressing the question of exactly when a prohibited retaliatory action has been taken against an employee, the United States Supreme Court’s June 2006 decision in Burlington Northern & Santa Fe Railway Co. v. Sheila White ended a significant disagreement among the various appellate courts on the issue. The Supreme Court answered two specific questions regarding retaliation for raising a claim of sexual discrimination. First, the Court decided that the retaliatory conduct need not take place within the employment setting; and, second, it held that a materially adverse action requires only that a reasonable employee would be deterred from making, filing, or supporting a claim of workplace discrimination to the EEOC, the courts, or the employer. Employers need to revise and update their internal policies and procedures to ensure that their firms comply with these new standards.     

Sixty years of discrimination and diversity research in human resource management: A review with suggestions for future research directions

This article reviews discrimination and diversity research published in Human Resource Management (HRM) over the past 60 years. While discrimination and diversity are very different constructs, it is often informative to study them together, because when people recognize each other's diversity, this can result in bias, stereotyping, and discrimination. We conducted bibliographic searches for terms related to discrimination and diversity as well as a manual search through every title and abstract published in HRM over the last 60 years to assess article relevance. The search resulted in 135 research articles with 136 unique studies (i.e., samples) which are reviewed in this article. Sex and race are the demographics that have been examined the most in HRM, while religion has been examined the least. Moreover, the number of studies examining lesbian, gay, bisexual, transgender, and queer (LGBTQ) employees in the workplace in HRM has grown quickly within the past 10 years, culminating in a recent meta‐analysis. Our review looks at some of the earliest research published, the most recent research published, and the overall trends we identified in the research over the years for both discrimination and diversity articles. We then make future research suggestions and recommendations to advance the study of discrimination and diversity in the coming years.     

商事仲裁员职业责任保险:制度思考、方式选择与现实困境

职业责任保险是现代社会中职业风险管理的一种方式,在我国的律师、医生、工程师、会计师等行业已得到应用。商事仲裁中,仲裁员可能因为工作失误或者过失造成当事人损失,可能产生民事赔偿责任,需要建立职业责任保险制度。考虑到我国实行仲裁员职业责任保险遇到的问题包括仲裁员责任体系不全,仲裁员民事责任制度缺失,仲裁行业管理体系不健全,仲裁机构的责任尚未明晰以及保险行业不发达,专业化险种开发有限等方面因素,宜采取以仲裁机构为被保险人的"集体保险式"、以仲裁员为被保险人的"个人保险式"和以仲裁案件为单位的"个案保险式"建立商事仲裁员职业责任保险制度。     

Methodological problems associated with research on unfair discrimination against racial minorities

Despite the passage of civil rights legislation, racial and ethnic minorities continue to experience unfair discrimination in the workplace. Therefore, considerable research in human resource management and social psychology has examined the factors thought to affect unfair discrimination in organizations [Cox, T. (1993). Cultural diversity in organizations: Theory, research, and practice. San Francisco: Berrett-Koehler]. Although research has focused on unfair discrimination, researchers have argued that the construct and external validity of the results have been adversely affected by methodological problems [e.g., Stone, E.F., Stone, D.L., & Dipboye, R.L. (1992). Stigmas in organizations: Race, handicaps, and physical unattractiveness. In Kelly, K. (Ed.). Issues, theory, and research in industrial and organizational psychology (pp. 385–457). Amsterdam: Elsevier]. Given this critique, the present paper (a) examines the degree to which recent research suffered from a number of methodological problems (e.g., obtrusive measures, non-representative samples, and demand characteristics), (b) identifies strategies for overcoming these problems, and (c) offers recommendations for advancing our understanding of unfair discrimination in organizational contexts.