ALJ decision in favor of Union is vacated for -- sexism!


The National Labor Relations Board has vacated the decision of an administrative law judge on the ground that his credibility determinations "were based on sex stereotypes and demonstrated bias."

The charging party was a female member of Local 28 of the International Longshoremen's Association. She claimed that the Union denied her training opportunities because of her sex, and also claimed that the Union's training coordinator made sexual advances to her when she tried to ask him about training. She alleged that this happened about 10 times over a five-year period. The training coordinator denied it, and claimed that she did get training.

In finding in favor of the Union, the ALJ said in part,

It is simply implausible that [the woman], who appeared to be a tough woman who performs stevedoring work on the docks and previously drove a truck in Iraq, would have meekly allowed [the training coordinator] to harass and assault her a whopping 10 times, without an utterance. It is even less plausible that she would have tolerated such egregious misconduct to preserve a job that only paid her less than $10,000 annually. It is still less plausible that a woman, who was empowered by having two relatives holding influential union positions     . . . would have allowed [the training coordinator] to repeatedly violate her. . . . It is also implausible that [the woman], who claims that she was too embarrassed to complain about sexual harassment, would have not opted to address her training problems by solely complaining about [the training coordinator]'s other reportedly less embarrassing comments (e.g., his alleged comment that, as a driver, she did not require training, or that he did not want to train her to perform grimy jobs). . . . 

The Board panel - consisting of Trump appointees Chairman Marvin Kaplan and William Emanuel, and Obama appointee Mark Gaston Pearce -- vacated the decision and sent it back to the chief ALJ for reassignment to and rehearing by a different judge. (Ouch.) Noting that it was "an unusual case," the panel found that the ALJ had "intertwined" "inappropriate bases to assess credibility . . . with other legitimate considerations to such an extent that we are precluded from determining whether the judge's credibility finding may be adopted based on the legitimate considerations."

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
Continue Reading



Back to Page