Arbitrator’s Alleged Bias Against Homosexuals Is Not Grounds to Reverse Award

Kollman & Saucier
Kollman & Saucier

Recently, a California Court of Appeal rejected a plaintiff/appellant’s claim that his case against his former employer — which went to arbitration pursuant to their employment agreement — should be reversed due to the arbitrator’s alleged undisclosed bias against homosexuals.  Bogue v. Anesthesia Service Medical Group, Inc., No. D073518 (Cal. App. 4th Dist. 7/17/19) (unpublished).

Dr. Bogue was an anesthesiologist for Anesthesia Service Medical Group (“the Medical Group”) for roughly 12 years.  After the Medical Group informed Bogue that it would not be renewing his employment contract (thereby ending the employment relationship), Bogue sued, alleging multiple whistleblower retaliation, discrimination, and harassment claims.  Bogue claimed he had been subjected to ongoing sexual orientation discrimination and harassment which the Medical Group failed to correct or prevent, and that the Medical Group retaliated against him for reporting patient safety violations and billing fraud.  The Medical Group maintained, among other things, that it terminated Bogue’s employment because of his interpersonal relationship problems with other physicians and hospital staff.

The case went to arbitration, where an arbitrator denied relief to Bogue on all his claims.  In so concluding, the arbitrator found that Bogue’s testimony and other evidence were unpersuasive and not credible.  Bogue subsequently petitioned a California state court with a motion to vacate the award, in part claiming that the arbitrator, who is Jewish, had failed to disclose a religion-based bias against homosexuals and had not provided Bogue with a fair hearing.  The trial court denied the petition, and Bogue appealed.

The appellate court affirmed.  While the arbitrator had an obligation to disclose any matters that could cause someone to question to his ability to be impartial, the court found that religious affiliation alone was insufficient to require the arbitrator’s disqualification.  The court reasoned that just because an arbitrator is Jewish does not mean that he or she has any “faith-based animosity” toward homosexuals.  Moreover, many people of faith, including arbitrators, are capable of making professional decisions based on standards that may not necessarily align with the tenets of their faith.  As such, the court found, the arbitrator was not required to disclose his religion.

Workplace discrimination laws operate to prevent employers from relying on assumptions about and individual’s characteristics — such as religion, sex, race, or disability — to make employment decisions.  These laws exist to help individuals gain employment opportunities regardless of their characteristics about which employers may base unreasonable or unfounded assumptions.  Even in the context of an arbitration award’s fairness, employers are wise to keep this principle in mind.



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