New Jersey Law

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Sexual Harassment or Unbecoming Conduct: NJ Supreme Court Reverses Arbitrator

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In a decision sure to reverberate around the State, a unanimous New Jersey Supreme Court reversed an arbitrator’s scant 120-day suspension of a teacher who used District- provided technology to send and receive nude photographs and engage in conduct toward other staff members that the arbitrator described as raising “bad judgment to an art form.”

In Bound Brook Board of Education v. Chiripompa, the NJ Supreme Court answered, “NO,” to the question of whether an arbitrator properly relied on the standard for proving sexual harassment to determine whether a staff member engaged in conduct unbecoming a public employee. The Court found that the arbitrator applied the wrong standard and remanded the matter for a new hearing before a new arbitrator.

The District maintained a policy prohibiting the use of District electronic devices for “illegal, inappropriate or obscene purposes,” and conducted training with respect to appropriate conduct toward staff members and workplace harassment on an annual basis. The District charged Mr. “C” with violations of the policy and conduct unbecoming. The Court decided that the arbitrator exceeded his authority by requiring the District to prove sexual harassment on the second count in order to prevail. The Court found that proving conduct unbecoming a public employee does NOT require proving “hostile work environment” as that term has been defined in Lehman v Toys R Us and its progeny. The ruling is significant. The Court opined that “claims of hostile work environment, sexual harassment and unbecoming conduct are governed by separate, distinct legal standards and in separate, distinct legal contexts.” Boards of Education and Public employers tasked with ensuring that their work environments are free from improper use of electronic devices and conduct otherwise improper in the workplace must therefore be clear when charges are filed against public employees. The Supreme Court has provided an avenue whereby a public employer is able to discipline employees for conduct unbecoming that might also violate their sexual harassment policies without alleging sexual harassment, providing a simpler path to demonstrating conduct unbecoming to a skeptical arbitrator.

DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum PC ( is a full service law firm in New Jersey which provides a broad range of legal services.

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