It’s tough to draw lessons from appeals of arbitration decisions.

Why? Because the standard to overturn arbitration cases is high and, it’s only when there are really bad facts (or, perhaps more likely, an really bad error in interpreting the law) that appellate courts consider reversing the decision.

That appears to be the case in State v. AFSCME, Council 4, Local 391, a decision from the Connecticut Supreme Court that will be officially released on August 6, 2013.

In that case, an alleged sexual harasser had been fired; but an arbitrator found the dismissal was unwarranted and ordered the employee reinstated — albeit reinstated after a one year suspension.  The Appellate Court reversed the arbitrator’s finding.  The Connecticut Supreme Court, in its ruling, has upheld that decision.

In doing so, the Court concludes that termination of an alleged harasser may not be appropriate in all cases, but may be required in many others:

We also recognize that the fact that there is a strong public policy against certain misconduct does not require an employer to terminate every employee who engages in that misconduct. Rather, we must determine whether the employee’s misconduct was ‘‘so egregious that it requires nothing less than termination of the [employee’s] employment so as not to violate public policy.’’

In this case, the court found it so egregious as to warrant termination.  Here’s a sample:

[T]he complainant testified in the arbitration proceeding as follows: ‘‘[The grievant] stated to [the complainant],‘Hey [h]omo it’s about time you came downstairs and stop sucking c**k.’ [The complainant] also testified that six weeks after that when he was . . . in the pharmacy he felt something touch his buttocks, he jumped and turned around and [the grievant] had a banana held at his crotch area, and made the statement in front of a witness, ‘he jumped like a girl.’ The [c]omplainant went on to testify . . . that at least [thirty] times [the grievant] called him a ‘ripper.’ The [c]omplainant didn’t know what that meant, and asked another employee what it meant and was told it meant ‘child molester.’ He confronted [the grievant] and asked him to stop making those statements, but [the grievant] continued. The [c]omplainant bought a parrot from another co-worker, [the grievant] overheard the conversation and later in the shift asked the [c]omplainant, ‘what did you have to do for the bird, give him a blow job.’ [The grievant] on other occasions also made comments about the [c]omplainant and a co-worker because they lifted weights together, and asked the [c]omplainant, ‘what do you guys do there grab each [other’s] crank.’ ’’

The dissent takes the majority to task saying that while he agrees that Connecticut has a public policy prohibiting sexual harassment in the workplace, it does not mandate termination of employment in every instance.  Rather, a “strong punishment” should be all that the state should force.

For employers, the case is a double-edged sword. On the one hand, the court seems to approve of an employer who says that it has a zero tolerance policy for harassment and supports the termination. But on the flip side, suppose the alleged harasser wasn’t terminated.  Could the employer then be liable for sexual harassment for not terminating the harasser? What will be “so egregious”? Is it the exception or the norm?

We’ll have to see the way this plays out in the court system over the next few years.