Standard union arbitration just failed a major federal test. Is yours next?
A sexual harassment victim's right to challenge her harasser's appeal just trumped a union contract at Rutgers University in a groundbreaking Title IX decision.
The New Jersey Supreme Court delivered a unanimous ruling on January 29 that affects educational institutions whose union contracts mirror this structure. The message: harassment victims must get equal participation rights in disciplinary appeals, or federal law will override your collective bargaining agreement.
The case started in early 2022 when a female custodian at Rutgers, identified in court documents as Jane, accused her male coworker of physical assault and ongoing sexual harassment. After investigating and holding hearings where both employees participated, university officials determined that J.M. violated the university's policies and terminated him that September.
The union representing both workers, AFSCME Local 888, then demanded arbitration under their contract with Rutgers. The university said no, arguing that federal Title IX regulations preempt the process. That refusal sparked a legal battle that climbed all the way to the state's highest court.
The union contract at issue allowed terminated employees to appeal through a four-step grievance procedure ending in binding arbitration. On its face, nothing unusual. But the structure created a problem: only the union, the employer, and the fired employee participate in arbitration. The harassment complainant gets left out completely.
Federal Title IX regulations require something different. Schools that accept federal education funding must ensure their grievance procedures apply equally to both the alleged victim and alleged harasser. That means harassment victims get the same rights as accused employees in any appeal: written notice when an appeal is filed, the opportunity to submit statements, and the chance to challenge the outcome.
The court found no way to reconcile that mandate with an arbitration process where Jane would sit on the sidelines while an arbitrator potentially reversed the decision protecting her.
Justice Fasciale, writing for the court, dismissed several proposed workarounds. Jane participating as a witness wouldn't cut it. Rutgers representing her interests wasn't good enough either, since the university and Jane aren't the same party. Filing a separate hostile work environment grievance on her behalf wouldn't work because that would involve different issues entirely.
The court emphasized this ruling doesn't eliminate union rights. Rutgers and AFSCME Local 888 can renegotiate their contract to comply with Title IX. They just cannot give appeal rights to accused harassers while shutting out the people who reported them. The court also stressed that its holding applies specifically to this collective bargaining agreement, leaving room for compliant alternatives.
The practical implications arrive immediately for HR leaders at universities, colleges, and schools receiving federal funding. Time to pull out those collective bargaining agreements and examine the grievance procedures closely. If your arbitration process mirrors the one at Rutgers, you're operating in violation of federal law.
Educational institutions need to audit their harassment procedures now, particularly the post-disciplinary appeal mechanisms in union contracts. Those standard arbitration clauses may work fine for general discipline cases, but Title IX draws a different line when sexual harassment is involved. The federal government has made clear that equal participation rights for victims aren't negotiable, and state labor agreements must yield when they conflict.
The decision reinforces that harassment complainants have enforceable rights beyond just filing a report. They get to participate meaningfully if the accused employee appeals, with the same procedural protections the accused receives. For HR departments managing these cases, that means rethinking who sits at the table during arbitration and what role complainants play in the process.
For educational institutions with unionized workforces, the clock is ticking on compliance.
