Recklessness, in other words, was predicated on ExxonMobil' S failure to adopt the very policy that the Department of Labor and the EEOC considered illegal. It is not even to argue whether a rational judicial system can allow a jury to award billions of dollars in punitive damages for an employer's failure to have a policy that two federal agencies consider illegal. United States v. Exxon Corporation, et al. ExxonMobil believes that both of its policies reflect reasonable alternative choices, in a difficult area, and that neither policy should be cause for the imposition of liability.
Federal agencies are in conflict.
Employers do their best to guess right, and are subject to millions or billions of dollars in punitive damages if plaintiffs' lawyers can persuade a jury that they have guessed wrong. Even judges do not always agree about what is right. ExxonMobil submits that the delicate and difficult task of reconciling competing public policies is too important to be left to a labor arbitrator who by definition is not charged with ascertaining the true public interest from among conflicting public policies. This is a task for a court, as the Court has repeatedly held. This is not to say that arbitrators are jurisdictionally excluded from consideration of the public interest.