ADR AND WORKPLACE SEXUAL ABUSE

April 1 2014, By Richard Brodsky, Esq.

New York’s historic preference for arbitration was recently upheld in a strongly-worded decision issued by Judge Anil Singh of the New York County Supreme Court. In Pupiales v. Building Management Company, et al., the Court issued an Order compelling arbitration under CPLR 7503 in a dispute between Plaintiff Pupiales and Defendants Building Managagment Co, and Rishi Patraju, her employer and her supervisor, over her allegations of repeated sexual abuse and gender discrimination. Defendants had sought arbitration and Plaintiff had opposed it.

The case had a complex procedural and legal history. At the heart of the legal dispute was Defendants claim that the employer had the right to arbitrate Plaintiffs claim of intentional sexual abuse pursuant to a Collective Bargaining Agreement (CBA). Plaintiff disagreed and argued that she had never consented to arbitrate an intentional tort like rape, that the CBA covered only conventional matters such as hours, wages and working conditions, that the CBA was not intended to allow management to grieve and arbitrate against an employee and that public policy favored her being given access to the courts to remedy such wrongdoing.

There was a complicated procedural history to the dispute including Plaintiff having sought both arbitration and intervention by the New York State Division of Human Rights (which had issued a finding of probable cause), and subsequently withdrawing the requests and pursuing a civil complaint in Supreme Court.

Judge Singh focused on the legal arguments, and found for Defendants on all matters. He first held that Plaintiff was bound by the CBA even though she had not personally signed it, a well established legal principle.

He then disposed of the more controversial question of whether the CBA extended to intentional torts and the highly charged issues of workplace sexual abuse. He cited the Court of Appeals broad endorsement of arbitration in Matter of Long Is. Lbr. Co. [Martin] (15 NY2d 380, 385 [1965]). “…only where the parties have employed language which clearly rebuts the presumption of arbitrability, e.g., by stating that an issue either as to procedure or as to substance is not to be determined by arbitration, that the matter may be determined by the courts. In the absence of such unmistakably clear language . . . the matter is sent to the arbitrator for his determination on the merits.”

This is also a well-established legal principle in New York. Judge Singh then searched the language of the CBA itself. He found CBA language that covered sex discrimination, and language extending grievance and arbitration proceedings to “any dispute”. He then found that the allegations of rape and sexual abuse were inextricably bound to the allegations of sex discrimination. “The alleged rapes and sexual harassment at the workplace by Pupiales supervisor [and her] allegations detailing multiple incidents of improper conduct and negligence at the workplace over a period of time, are factually intertwined with her allegations of discriminatory conduct based on her sex.”

By connecting an intentional tort with prohibitions on sex discrimination the Court reaffirmed the broad scope of arbitration in New York. But public concern about workplace sexual misconduct continues to increase. This decision affirms that ADR can resolve allegations of intentional torts and the often neglected area of workplace sexual abuse. It presents a clear challenge to parties, counsel and arbitrators themselves to assure that ADR fairly resolves issues of sexual violence and retains its reputation as an effective alternative to civil litigation.

_________________________________________________________________________________

Richard Brodsky, Esq., a former New York State Assemblyman, is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to hear arbitrations and mediations throughout the New York Metro area.

Click here to view Richard Brodsky’s resume.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.