Category: ADA

  • HR and the Courts — March 2024 – CUPA-HR

    HR and the Courts — March 2024 – CUPA-HR

    by CUPA-HR | March 13, 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Dartmouth College May Appeal NLRB’s Decision Allowing Basketball Players to Unionize

    The Dartmouth College men’s basketball team voted 13-2 to unionize, selecting the Service Employees International Union Local 560 to represent them in collective bargaining. While student-athletes at Northwestern University voted to unionize some 10 years ago, the National Labor Relations Board declined jurisdiction in that case. Here, the NLRB appears to be taking a different approach and has affirmed the regional director’s decision that the basketball players are employees of the college.

    Bloomberg reports that Dartmouth stated it has “deep respect” for its unionized workers but does not believe this path is “appropriate” for basketball players. Dartmouth has argued to the NLRB that its student-athletes are not employees and that its basketball players are participating in a voluntary extracurricular activity. The NLRB, with one dissenting vote, denied Dartmouth’s motion to stay its decision, ruling that the basketball players are employees of the institution. The legal path forward is complex, and we will report on developments as they occur.

    Separately, the NLRB is conducting a hearing on the West Coast involving an unfair labor practice complaint filed against the University of Southern California, the Pac-12 Conference and the NCAA regarding their refusal to bargain with a union representing football and basketball players at USC. The NLRB general counsel has publicly stated that she believes student-athletes are employees who should be able to unionize.

    Student-Athlete Employee Status Could Lead to Student Visa Problems

    The classification of college student-athletes as employees could lead to F-1 visa problems for international athletes enrolled in U.S. colleges and universities. The F-1 visa restricts work to 20 hours per week when classes are in session and 40 hours per week when classes are not in session. The F-1 visa is used by roughly 20,000 international athletes enrolled in U.S. colleges and universities.

    Possible workarounds are either the P-1 visa, which is a nonimmigrant visa used by professional athletes, or an O-1 visa, which is used by individuals with extraordinary ability. Commentators conclude that these workarounds are not feasible on the scale necessary to accommodate the number of international student-athletes involved. A legislative solution will probably be necessary to address this problem should the employee status of college athletes be confirmed by the NLRB, or in other litigation under statutes such as the Fair Labor Standards Act.

    Union Membership and Strike Activity Rose Dramatically in 2023

    Bloomberg Law’s statistical analyses show that union membership and strike activity rose considerably in 2023 to levels not seen in years. Unions organized almost 100,000 new workers in NLRB-supervised elections in 2023, the largest single year total since 2000. This is the fourth-largest total one-year organizing gain since 1990, according to Bloomberg Law statistics. This is also the first time since 1990 that unions have managed to increase their annual headcount for three years in a row.

    The news is similar on the strike activity front. Over 500,000 workers participated in work stoppages in 2023. This is the second-highest number since Bloomberg Law began collecting this data in 1990. The only year that saw more strike activity since 1990 was 2018, the year of multiple city- and state-wide teacher strikes.

    SpaceX’s Challenge to NLRB’s Administrative Procedures Is Transferred From Texas to California

    A federal district court judge in Texas recently granted the NLRB’s motion to transfer SpaceX’s constitutional challenge from federal court in Texas to federal court in the Central District of California, where the underlying facts, NLRB hearing, and decision took place (SpaceX v. NLRB (S.D. Tex., No. 24-00001, Motion Granted 2/15/24)).

    SpaceX argued that the Texas venue was proper because SpaceX has operations and employees in Texas who received and were subject to a company letter, distributed nationally, that the NLRB ruled violated employee rights under the National Labor Relations Act.

    The Texas federal judge rejected SpaceX’s arguments, concluding that the underlying California-based administrative proceedings were brought against a California-based company and involved its California employees. With the transfer of the case to California, SpaceX lost a potentially more favorable appeals court precedent and appellate review. The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) is viewed as more conservative than the 9th Circuit, which covers California. In addition, the 5th Circuit has in the past ruled that aspects of decisions by other federal agencies, including the Securities and Exchange Commission, violate the U.S. Constitution.

    Employer Risk Associated With Targeting Remote Workers for Termination

    Remote work is not in and of itself a protected classification under federal or state civil rights laws. Nonetheless, the reasons for remote work could be protected, such as a disability-related concern. Bloomberg Law commentators conclude that remote workers are more likely to be laid off or miss out on promotional opportunities than peers who work in the office or in hybrid environments. Also according to Bloomberg Law, studies demonstrate that remote workers are more likely to be women, persons of color and those with disability accommodations. Evidence that any of those protected factors contributed to the termination, layoff or failure to promote could give rise to a successful challenge of the employment action under either the Americans with Disabilities Act or applicable state or federal civil rights statutes.

    Disney Actor Tests California State Law Protecting Employees From Discharge for Off-Work Political Comments

    An actor in the Disney show “The Mandalorian” filed a lawsuit claiming that she was unlawfully terminated from the show because of political comments she made outside of the workplace. Actor Gina Carano claims she was terminated after social media posts comparing the treatment of Trump supporters to how Jews were treated during the Holocaust. The plaintiff also alleges that Disney took issue with other comments she made on the COVID-19 vaccine, gender identity and voter fraud during the 2020 election.

    The lawsuit has been filed in federal court in the Central District of California and is being funded by Elon Musk. The suit was filed under a California statute that has broader protections than Title VII in protecting off-work political comments and has no cap on damages. Section 1101 of the California Labor Code protects a worker’s right to political expression outside of work, including speaking up for a candidate or cause.

    The plaintiff also alleges sex discrimination and that Disney treated male actors more favorably in similar circumstances. She alleges that male stars Mark Hamill and her co-star Pedro Pascal were treated more favorably when they engaged in off-work political statements. The breadth of the protection and scope of the California statute will be tested by this litigation brought against Disney.

    NLRB Reverses Decision, Finds Home Depot Violated NLRA Over Employee’s Black Lives Matter Slogan

    A three-member panel of the NLRB ruled 2-1 that Home Depot violated the NLRA when it told an employee that he could not work with a “BLM” slogan on his company-issued apron, thus forcing his resignation (Home Depot USA (NLRB Case no. 18-CA-273796, 2/23/24)). The NLRB panel reversed the decision of the administrative law judge who had handled the trial of the case and had ruled in favor of Home Depot, holding that the company had the right to maintain its rules about company uniforms.

    The NLRB panel reversed, concluding that Home Depot violated the NLRA because the record demonstrated the employee’s protest was in furtherance of earlier group complaints about racism in the Home Depot workplace. In these circumstances, the NLRB concluded that the employee’s action in working with a Black Lives Matter slogan on his work apron was protected, concerted activity under the NLRA, as a “logical outgrowth” of earlier employee protests of race discrimination at the specific Home Depot store. The dissenting board member stated in his decision that the majority holding was an “unprecedented extension” of the “logical outgrowth” theory.



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  • EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    by CUPA-HR | August 28, 2023

    On August 7, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule to implement the Pregnant Workers Fairness Act (PWFA). The proposed rule provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

    In December, the PWFA was signed into law through the Consolidated Appropriations Act of 2023. The law establishes employer obligations to provide reasonable accommodations to pregnant employees so long as such accommodations do not cause an undue hardship on the business, and makes it unlawful to take adverse action against a qualified employee requesting or using such reasonable accommodations. The requirements of the law apply only to businesses with 15 or more employees. 

    Purpose and Definitions 

    Under the proposed rule, the EEOC states that employers are required to “provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.” 

    Most definitions included in the EEOC’s proposed regulations follow the definitions provided under the Americans with Disabilities Act (ADA). The proposed rule, however, expands upon the definition of a “qualified employee or applicant” to include an employee or applicant who cannot perform an essential function of the job so long as they meet the following criteria: 

    • Any inability to perform an essential function is for a temporary period 
    • The essential function could be performed in the near future 
    • The inability to perform the essential function can be reasonably accommodated 

    The rule continues by defining “temporary” as the need to suspend one or more essential functions if “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” Accordingly, “in the near future” is defined to extend to 40 weeks from the start of the temporary suspension of an essential function.  

    Additionally, the terms “pregnancy, childbirth, or related medical conditions” include a non-exhaustive list of examples of conditions that fall within the statute, including current or past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion. The proposed rule specifies that employees and applicants do not have to specify the condition on the list or use medical terms to describe a condition to receive an accommodation.  

    Reasonable Accommodations 

    The proposed rule states that requests for an accommodation should both identify the limitation and indicate the need for an adjustment or change at work. The rule adopts the interactive process for approving and adopting reasonable accommodations for employees or applicants as implemented under the ADA, meaning employers and the qualified employee or applicant can work together to reach an agreement on an appropriate accommodation. 

    The proposed rule also offers a non-exhaustive list of examples of reasonable accommodations that may be agreed upon during the interactive process. These include frequent breaks, schedule changes, paid and unpaid leave, parking accommodations, modifying the work environment to make existing facilities accessible, job restructuring and other examples.  

    Additionally, the proposed rule introduces “simple modifications,” which are presumed to be reasonable accommodations that do not impose an undue burden in almost all cases. The four simple modifications proposed are: 

    • Allowing employees to carry water and drink, as needed, in the work area 
    • Allowing employees additional restroom breaks 
    • Allowing employees to sit or stand when needed 
    • Allowing employees breaks, as needed, to eat and drink 

    Supporting Documentation 

    The proposed rule states that covered employers are not required to seek documentation to prove the medical condition or approve an accommodation, further stating that the employer can only request documentation if it is reasonable in order to determine whether to grant an accommodation for the employee or applicant in question. Under the regulations, “reasonable documentation” is that which describes or confirms the physical condition; that it is related to, affected by, or arising out of pregnancy, childbirth or related medical conditions; and that a change or adjustment at work is needed for that reason. Examples of situations where requesting documentation may be determined to be unreasonable include when the limitation and need for an accommodation are obvious; when the employee has already provided sufficient documentation; when the accommodation is one of the four “simple modifications”; and when the accommodation is needed for lactation. 

    Remedies and Enforcement 

    The proposed rule establishes the applicable enforcement mechanisms and remedies available to employees and others covered by Title VII of the Civil Rights Act of 1964 for qualified employees and applicants covered under the PWFA. The rule also proposes several anti-retaliation and anti-coercion provisions to the list of protections granted to those covered by the PWFA. 

    Next Steps 

    The EEOC’s proposed rule marks the agency’s first step toward finalizing PWFA regulations. Although the timing is uncertain, the EEOC will likely aim to issue the final regulations by December 29 — the deadline Congress gave the agency to finalize a rulemaking to implement the law. Notably, however, the PWFA went into effect on June 27, meaning the EEOC is now accepting violation charges stemming from PWFA violations without having a final rule implemented. 

    The EEOC invites interested stakeholders to submit comments in response to the proposed rule by October 11. Comments will be considered by the agency before issuing its final rule for the PWFA.  

    CUPA-HR will keep members apprised of any activity relating to the PWFA regulations.



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  • DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    by CUPA-HR | February 21, 2023

    On February 9, the Department of Labor’s Wage and Hour Division (WHD) issued an opinion letter stating that employees with chronic serious health conditions may use Family and Medical Leave Act (FMLA) leave to reduce work hours indefinitely. The WHD opinion letters serve as a means by which the public can develop a clearer understanding of what FMLA compliance entails. This particular letter is the first issued by the Biden administration.

    The letter from the WHD and Acting Administrator Jessica Looman comes in response to an employer’s letter asking whether “an employee may use FMLA leave to limit their work schedule for an indefinite period of time if the employee has a chronic serious health condition and a healthcare provider certifies that the employee has a medical need to limit their schedule.” The question only applies to employees who are regularly scheduled to work more than eight hours per day.

    The opinion letter specifies that if an employee is regularly scheduled to work more than eight hours per day but has an FMLA-qualifying condition that grants them to take FMLA leave, then the employee is entitled to use the 12 weeks of FMLA leave to reduce their work hours to eight hours per day. It adds that an employee may indefinitely reduce their work hours so long as they don’t surpass the 12 weeks of FMLA leave in a 12-month period that they are entitled to under the law.

    The letter also addresses concerns from the employer that the need for a work day limited to eight hours may be “better suited” as a reasonable accommodation granted under the Americans with Disabilities Act (ADA). The letter states that the requirements and protections of the FMLA and ADA are separate and distinct, and that employees may be entitled to use protections granted under both laws at the same time. It further states that an employee who has exhausted all of the afforded FMLA leave for a 12-month period may have additional rights granted under the ADA to continue to work at the reduced level, but it clarifies that the WHD does not “interpret or provide any advice for” the ADA and its requirements.

    Finally, the letter states that employees are entitled to the equivalent of 12 standard workweeks of FMLA leave, which may be more than 480 hours (equivalent to working 40 hours per week for 12 weeks) if the regular schedule of the employee is greater than 40 hours per week. The letter uses an example of an employee regularly working 50 hours per week, in which case the employee would be entitled to 600 hours of FMLA leave.

    It’s worth noting that the content of the letter is consistent with long-standing guidance and enforcement of the FMLA. The letter may draw increased attention to the issue, however, since the letter is the first provided by the Biden administration’s WHD.

    CUPA-HR will continue to monitor for any future WHD opinion letters and will keep members apprised of any significant updates in the future.



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  • HR and the Courts – September 2022 – CUPA-HR

    HR and the Courts – September 2022 – CUPA-HR

    by CUPA-HR | September 7, 2022

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    University Football Coach’s First Amendment Retaliatory Discharge Claim For Posting “All Lives Matter” Sign On His Office Door Proceeds

    A federal district court judge recently denied a University of Illinois motion to dismiss its former offensive coordinator’s claim that his retaliatory termination was in violation of his First Amendment rights by posting a handwritten note on his office door stating “All lives matter to our lord and savior Jesus Christ.” The federal judge ruled that the former coach was not acting within his official duties when he posted the note. The judge concluded that the plaintiff was not paid by the university to decorate his office door, but rather was paid to coach football. Therefore, the note expressed his personal views (Beathard v. Lyons (C.D. Ill,. No, 21-cv-01352, 8/11/22)).

    The court ruled that it is premature to decide whether the university can justify the termination because “there is not enough information to properly weigh” the interests of the university against that of the public employee in this matter. The plaintiff alleges that someone posted a general statement without his permission that supported Black athletes at the university in the wake of George Floyd’s death. He claims to have taken down the note and posted his own handwritten note. According to the complaint, his note upset some players who boycotted practice. CUPA-HR will follow developments in this case.

    Federal Appellate Court Holds That Gender Dysphoria Is a Disability Covered Under the ADA

    The Fourth Circuit Court of Appeals (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently became the first federal appellate court to rule that gender dysphoria is a disability covered under the Americans with Disabilities Act (ADA). The 33-page majority decision was accompanied by a 21-page dissent. The appellate panel ruled 2-to-1 that gender dysphoria is covered under the ADA (Williams v. Kincaid (4th Cir. 21-2030. 8/16/22)).

    The ADA contains a statutory provision excluding gender identity disorders from coverage under the ADA. The appellate court noted that the American Psychiatric Association (APA) removed gender identity disorders from its diagnostic manual nearly a decade ago. Gender identity disorders had referred to a condition of identifying as a different gender. The APA replaced the gender identity disorder diagnosis with the more modern diagnosis of gender dysphoria. Gender dysphoria is currently contained in the APA’s diagnostic manual and is a “clinically significant distress or impairment related to a strong desire to be another gender.” The APA says that the condition can interfere with an individual’s social life, their ability to do their job and other daily functions.

    The appellate court concluded that the “plain meaning” of the ADA’s exclusion of gender identity disorders as “it was understood at the time of enactment” does not then or now exclude gender dysphoria from ADA coverage. The court concluded that “the obsolete definition focused on cross gender identification; the modern one on clinically significant distress.” The dissent disagreed stating that “Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the province reserved for legislature, it turns the statute into a moving target.”

    Transgender Class Against the State of West Virginia Alleging State’s Denial of Gender-Affirming Care Violates Obama Care Statute Prevails in Trial Court

    A class of more than 600 transgender Medicaid participants prevailed in federal court against the state of West Virginia where a federal judge held that the state’s denial of gender-affirming care violated the federal anti-discrimination provisions of the Obama Care statute and the U.S. Constitution (Fain et al v. Crouch et al (3:20- cv-00740 S.D. W.Va.. 8/2/22)). The case may have applicability to other state medical and health plans.

    The court recognized that often the same procedure is used to treat a variety of cases and it is unlawfully discriminatory to deny transgender patients similar treatment given to non-transgender patients.

    Court of Appeals Approves NLRB Order for Private Employer to Pay Union Legal Fees Incurred in Collective Bargaining Process

    In a case applicable to private colleges and universities which are subject to National Labor Relations Board (NLRB) jurisdiction, the U.S. Court of Appeals for the Ninth Circuit (covering California, Oregon, Washington, Montana, Idaho, Nevada and Arizona) affirmed an NLRB decision ordering an employer to pay its union’s legal fees incurred in the collective bargaining process (NLRB v. Ampersand Publishing (9th Cir. No. 21-71060, 8/11/22)).

    The Ninth Circuit concluded that although the NLRB lacks jurisdiction to award attorney fees as a remedy in the litigation context, it is fully within their authority to award such a remedy in the collective bargaining context. In this case, the union filed unfair labor practice charges alleging the employer’s refusal to bargain. The union claimed it had to incur extra attorney fees as part of the bargaining process because of the employers violation. The court rejected the employer’s argument that the legal fees were akin to litigation costs because of the unfair labor practice charges filed with the NLRB. The NLRB disagreed and attributed the attorney fees of $42,000 to the collective bargaining process. The case involved the Santa Barbara News Press as the employer and a local teamster affiliate that has incurred the legal fees.

    IRS Initiates Pilot Program Allowing Workplace Employee Benefit Plans to Correct Errors Before Formal Audits Commence

    Under a new pilot program, the Internal Revenue Service (IRS) will allow workplace benefit plans to correct errors before investigators formally commence an audit. As part of a new pilot project, about 100 U.S. workplace benefit plans, including retirement plans, have received letters from the IRS since June allowing selected plans a 90-day window to correct mistakes in plan design, administration or documentation before regulators launch formal audits or close out case files.

    Self-identified corrections of this sort are not new to the IRS, however, before this pilot they were only available to employers who had not been targeted by an audit.

    Federal Judge Blocks Florida Workplace Bias Training Restrictions 

    A federal district court judge approved a preliminary injunction barring the enforcement of a Florida statute which restricts workplace bias training from teaching about unconscious bias. The Florida statute known as the Individual Freedom Act (IFA) bars employers from endorsing various race, sex and ethnicity-based concepts during workplace training.

    The plaintiffs are a coalition of employers and diversity and inclusion specialists who conduct workplace training. The judge ruled that the Florida statute likely violates the First and Fourteenth Amendments and that the plaintiffs will incur irreparable harm if the IFA is allowed to be enforced (Honeyfund.com Inc. et al v. Ron DeSantis et al (Case no. 4:22-cv-00227. N.D. Fla., 8/18/22)).



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | March 9, 2022

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    National College Players Association Files Unfair Labor Practice Charges Against the NCAA and Multiple Public and Private Colleges, Asserting College Basketball and Football Players Are Employees Under the NLRA

    The National College Players Association (NCPA), a non-profit advocacy group, has filed unfair labor practice charges with the National Labor Relations Board (NLRB) asserting that private and public universities, USC and UCLA, as well as the National Collegiate Athletic Association (NCAA) and the Pac-12 conference as joint employers have violated the National Labor Relations Act (NLRA) in refusing to treat college basketball and football players as employees. The NCPA hopes to convince the NLRB to rule that all division college basketball and football players at public and private colleges and universities are employees with collective bargaining rights.

    The current NLRB general counsel has stated publicly that she believes that student-athletes at private colleges and universities are employees subject to coverage under the NLRB. Nonetheless, the NLRB with jurisdiction over private colleges and universities has not yet ruled on the issue. The NCPA asserts that public colleges and universities will be covered because they are joint employers with the NCAA and the Pac-12 conference, both of which are private organizations subject to NLRB jurisdiction. This joint employer argument has not been ruled on by the NLRB in the past.

    U.S. Court of Appeals to Consider Whether Student-Athletes Are Employees Under the FLSA and Must Be Paid Minimum Wage and Overtime 

    Apart from the action described above concerning whether student-athletes are employees under the NLRA and therefore subject to unionization and mandatory collective bargaining, the U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey, Delaware and Maryland) will hear an appeal by colleges that the lawsuit by student-athletes seeking coverage under the Fair Labor Standards Act (FLSA) and minimum wage and overtime payments should not go to trial, but rather should be dismissed under current precedent. The lawsuit was filed in Pennsylvania against the NCAA and several Division-I colleges.

    The federal trial court judge denied the NCAA’s and college’s motion for summary judgment and ordered that the case proceed to trial. The NCAA and colleges argued that the trial court judge’s decision contradicted the decision of the Seventh Circuit Court of Appeals (covering Wisconsin, Illinois and Indiana) and a California state court case ruling that the student-athletes are not employees under the FLSA (Johnson et, al v. NCAA et al (3rd Cir., Case no. 22-8003, 2/4/22)).

    Gymnastics Coach Claims Gender Bias and Sex Stereotype That Female Coaches Are Not Expected to Be As Aggressive as Their Male Counterparts as Reasons For Her Termination  

    A former Towson University gymnastics coach was terminated after the university received complaints from gymnastics team members claiming that her coaching techniques were discriminatory against Black team members, that she bullied team members into competing while injured and that she did not adequately feed the team. The coach claimed that the termination resulted from the sex stereotype that female coaches are not expected to be as aggressive as their male counterparts.

    The university countered that her discharge resulted from valid complaints by team members. The university also argued that it is the coach who is guilty of sex stereotyping with regard to her defense that female athletes are more likely to complain about her coaching practices than male athletes. The university also responded to the coach’s claim of pregnancy discrimination, arguing that the coach never explicitly advised the university that she was pregnant. The coach claimed that she was visibly pregnant at her last meeting with the university. The case is pending in federal district court in Maryland (May v. Towson University (Case no. 1:21-cv-02229, D. Md.)).

    Federal Court Rules School District Likely Violated Constitutional Rights of Three Paraprofessionals Who Were Prohibited From Wearing Black Lives Matter and Other Anti-Racism Messaging 

    A federal district court trial judge ruled in favor of three paraprofessional employees who were prohibited by their school district from wearing masks and other clothing with Black Lives Matter and other anti-racism messaging. The judge ruled that the school board’s actions “likely” violated First Amendment free speech rights (Fuller et al v. Warren County Educational Service Center et al (2022 BL 48702, S.D. Ohio 2/14/22)).

    The judge ruled that the school district must immediately lift its ban on any such controversial social or political messaging while the case is litigated further. The judge ruled that the employees’ messaging addresses a matter of public concern and they “spoke” as private citizens by making statements on Black Lives Matter and other related issues that are not within their job duties. The judge concluded that the school district did not demonstrate that the wearing of the material would disrupt school operations. While avoiding an emotional or violent outburst by a sensitive student body would justify the ban, the school district did not prove the likelihood of such a development. The judge also concluded that there was no evidence supporting the school district’s concerns, making them purely conjectural and outweighed by the free speech rights of the employees.

    Professor Files ADA and Rehab Act Discrimination Case Alleging His Heightened COVID-19 Risk Is a Disability and He Was Unfairly Denied a Reasonable Accommodation to Continue Teaching Remotely

    A former science professor at Georgia Military College sued the college’s board of directors in federal court after he was put on an unpaid suspension and ultimately terminated following the alleged denial of his accommodation request that would allow him to teach his classes remotely based on his doctor’s advice that he was of high risk for COVID-19 because of numerous conditions, including Crohn’s disease, kidney failure and anemia. The professor asked that he be allowed to continue teaching remotely as he had allegedly done for six months before the college asked most professors to resume teaching in person. The professor alleges that other professors were allowed to continue teaching remotely in small class situations, but he was denied his request because his class was very large due to the popularity of his teaching (Fields v. Board of Trustees of Georgia Military College and Georgia Military Prep School (M. Dist. Ga. 5-22-cv-00074)).

    The professor claimed that he was a former recipient of a teaching excellence award at the school and was treated “dismissively” in his denial of his accommodation request. He also claims he was allowed to teach remotely due to his disabilities in 2016, prior to the pandemic, and that is when he received the teaching excellence award. The college claimed it responded to his accommodation request by offering him two alternatives: return to teaching in person or take an unpaid leave of absence. The professor is seeking back pay, loss of employment benefits and three to five years of front pay. The professor claims job reinstatement is not feasible in these circumstances.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | January 12, 2022

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    NCAA Loses Appeal For Expedited Ruling Denying Student-Athletes’ Minimum Wage FLSA Claims — Claims Move to Federal Court Trial 

    The National Collegiate Athletic Association (NCAA) was denied a request or fast track consideration of its appeal of an adverse trial court order to proceed to trial over student-athlete claims that they are covered by the Fair Labor Standards Act minimum wage and overtime rules as they are employees. The trial court judge ruled that the question of whether the student-athletes are employees is a mixed question of law and fact, which should go to trial. The judge concluded that the NCAA can appeal an adverse trial decision after trial.

    The NCAA countered that similar suits in the U.S. Appeals Seventh and Ninth Circuits have been dismissed. The NCAA argued that appeals courts in the Seventh Circuit (covering Illinois, Indiana and Wisconsin) and in the Ninth Circuit (covering California, Oregon, Washington, Nevada, Arizona, Idaho and Montana) both held that the NCAA is not the employer of student-athletes. In rejecting the NCAA’s interlocutory appeal, the Third Circuit (covering Pennsylvania, New Jersey and Delaware) ruled that the NCAA failed to meet its burden in showing exceptional circumstances justifying departing from the normal policy of delaying appellate consideration until a final judgement is issued.

    EEOC Issues “Guidance” That COVID-19, Under Certain Circumstances, May Be a Disability Covered and Protected By the ADA From Discrimination

    The Equal Employment Opportunity Commission (EEOC) issued “guidance” in mid-December stating that, in certain circumstances, COVID-19 may be a disability covered by the Americans With Disabilities Act (ADA), making it illegal for employers to discriminate against employees with COVID-19. The EEOC chair pointed out that employees with disabilities resulting from COVID-19 may be eligible for a reasonable accommodation. Depending on each employee’s individual circumstances, an employee recovering from COVID-19 may meet the ADA’s definition of a disability as a mental or physical impairment that substantially limits a major life activity, or an employer’s perception that the individual has a disability.

    Someone who has COVID-19 and experiences multi-day headaches, dizziness and brain fog attributable to COVID-19 is an example of an impairment covered by the ADA. However, the EEOC pointed out that not every person with COVID-19 will qualify as disabled. For example, if someone has COVID-19 and is asymptomatic or has mild symptoms similar to the flu that lasts only a few weeks, with no other consequences, that person would not qualify as disabled. The EEOC suggests an individual assessment of each employee with COVID-19 might be necessary to determine whether it is a disability.

    State and Local Ordinances Regulate the Use of Artificial Intelligence/Automated Job Applicant Screening Tools In Screening Job Applicants

    New York City (NYC) just established one of the broadest new laws concerning the use of artificial intelligence tools to screen job applicants by NYC employers. The effective date is unclear and local counsel should be consulted on the new regulations in NYC. Under the NYC law, such artificial intelligence tools will be banned in NYC unless they are subject to a “bias audit” conducted a year before the use of the tool. Illinois passed a law similar to the NYC law. Maryland passed a law banning the use of facial recognition in the employment application process without the applicant’s consent. The attorney general in the District of Columbia is also proposing a related proposal addressing “algorithmic discrimination.” The EEOC recently indicated that it would study the use of artificial intelligence job screening tools to see if they contribute to bias in employment decisions.

    Denial of Healthcare Coverage For Transgender Surgery Is Subject to Discovery Squabbles As Arizona Appeals Trial Court Order to Turn Over Attorney Opinions Concluded Its Actions Were Legal

    The state of Arizona recently appealed a federal trial court’s decision that it turn over “attorney opinions” and that its actions excluding transgender surgery from health plan coverage were legal, to the Ninth Circuit Court of Appeals. The Ninth Circuit covers California, Oregon, Washington, Arizona, Nevada, Idaho and Montana. The health plan’s exclusions are subject to a lawsuit alleging that the denial of benefits violates the applicable sex discrimination statutes.

    The state claimed that its actions excluding such benefits form coverage were legal and relied on “attorney opinions” to that effect. The plaintiff in the case asked that the opinions be turned over as part of the litigation, and the state of Arizona refused, claiming the documents were subject to attorney/client privilege The federal trial court judge agreed with the plaintiff, holding that Arizona waived privilege by implication, concluding that privilege cannot be used as both a sword and a shield.

    U.S. Department of Labor and NLRB Sign a Memorandum of Understanding, Agreeing to Cooperate In Enforcement Proceedings

    The Biden administration’s Department of Labor and National Labor Relations Board (NLRB) have come to an agreement on a memorandum of understanding (MOU) to collaborate on enforcement investigations and share information on potential violations of the law. The enforcement agreement will target independent contractor misclassification matters and retaliation claims brought by workers. On the DOL side, this agreement involves the DOL’s Wage and Hour Division, which enforces the minimum wage and overtime provisions of the Fair Labor Standards Act.

    The MOU partners two agencies with similar goals. It appears to follow through on last year’s tri-agency discussion between the DOL, NLRB and the EEOC when the agencies sought to discuss cooperation on retaliation claims brought by employees.



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  • EEOC Adds Technical Assistance Guidance to Clarify When COVID-19 Is Considered a Disability Under the ADA – CUPA-HR

    EEOC Adds Technical Assistance Guidance to Clarify When COVID-19 Is Considered a Disability Under the ADA – CUPA-HR

    by CUPA-HR | December 22, 2021

    On December 14, the Equal Employment Opportunity Commission (EEOC) released additional COVID-19 technical assistance to clarify certain circumstances under which employers and employees may consider COVID-19 a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The guidance, which is presented in a Q&A format, focuses broadly on the definition of disability under the ADA and Rehabilitation Act and provides examples detailing how an individual diagnosed with COVID-19 or post-COVID-19 conditions could be considered to have a disability under these laws.

    According to an EEOC press release, the technical assistance adds the following key guidance:

    • An applicant’s or employee’s COVID-19 may cause impairments that can be considered disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
    • An applicant or employee with mild COVID-19 symptoms that resolve in a few weeks with no other consequences will not have a disability as defined under the ADA that would make them eligible to receive a reasonable accommodation.
    • Applicants or employees with disabilities under the ADA are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. They are not automatically entitled to reasonable accommodations under the ADA. Employers can choose to do more than the ADA requires.
    • Employers risk violating the ADA if they prevent employees from returning to work once the employee is no longer infectious and is medically able to return to work without posing a threat to infect others.

    The EEOC also clarifies that this technical guidance differs from July guidance from the Department of Justice (DOJ) and the Department of Health and Human Services (HHS), which addresses “Long COVID” as a Disability under Sections 504 and 1557 of the ADA. According to the press release, the DOJ and HHS guidance only focuses on long COVID, while the EEOC’s new technical assistance focuses more broadly on COVID-19 in the context of Title I of the ADA and Section 501 of the Rehabilitation Act, which covers employment.

    CUPA-HR will continue to keep members apprised of any COVID-19 guidance as it relates to disability and discrimination under EEO law.



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  • Celebrate International Day of People With Disabilities on December 3 – CUPA-HR

    Celebrate International Day of People With Disabilities on December 3 – CUPA-HR

    by CUPA-HR | November 30, 2021

    In 1992, as part of its focus on promoting the well-being of people with disabilities, the United Nations called for an international day of celebration for people with disabilities. Held on December 3 each year, International Day of People With Disabilities is a day to recognize and learn from the experiences of those with disabilities and for organizations to show support and take action to create more diverse and inclusive communities.

    In recognition of the day, we’re sharing some inspiring articles and blog posts highlighting the work of HR pros to create more inclusive campuses and workplaces.

    Additional resources: 

    CUPA-HR ADA Toolkit
    Creating Inclusive Communities Project



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | September 21, 2021

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    EEOC Brings Its First COVID-19 Teleworking Denial Lawsuit Under the Americans With Disabilities Act  

    The Equal Employment Opportunity Commission (EEOC) recently brought its first denial of a disability accommodation lawsuit connected to the pandemic. The employer in question denied an employee’s request to continue teleworking. The employee claimed that her heart problems heightened her COVID-19 risk. The case was filed in federal district court in Georgia (EEOC v. ISS Facility Services Inc. (N.D. Ga., No. 1:21-CV-3708-SCJ-RDC, comp filed, 9/7/21)).

    The employee’s accommodation request was that she be allowed to work from home two days per week. The plant where she worked reopened following a multi-month period where all employees telecommuted, including the plaintiff. The employee also asked to be allowed to take frequent breaks when working on-site three days per week because her pulmonary condition caused her to have difficulty breathing. The EEOC alleged that while the employee’s accommodation request was rejected, other employees were allowed to work from home. Additionally, the EEOC alleged that the employee was terminated after her accommodation request was denied.

    The EEOC released the following statement about the case: “In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic.” The EEOC is seeking back pay, compensation for past and future pecuniary and non-pecuniary losses, punitive damages and a permanent injunction.

    Union Decertification Elections and the Percentage of Actual Union Losses Rise in the First Half of 2021 Compared to 2020

    Union decertification elections in the first half of 2021 increased by 30 percent over the number of decertification elections supervised by the National Labor Relations Board (NLRB) during the same period in 2020. In contrast, NLRB-supervised certification elections increased by only 4 percent during the same period in 2021 as compared to 2020 according to NLRB reports published by the Bloomberg Daily Labor Report.

    Unions lost two-thirds of the decertification elections supervised by the NLRB in the first half of 2021. This is an increase of 64 percent over the number of losses unions incurred in the first half 2020.

    Community College Disability Plans Exempt From ERISA as a Governmental Plan — Federal Court Remands Plaintiff’s Case to State Court to Proceed Under Applicable State Law

    A former community college employee can seek relief from denial of disability benefits under state law as the federal court hearing the case ruled that community college plans are exempt from the Employee Retirement Income Security Act of 1974 (ERISA) as a governmental plan. The federal court ruled that relief may be available to the employee under state law, as there is no federal jurisdiction.

    The case involved a former employee of St. Louis Community College who had been receiving disability benefits under the plan for about five years. Disability benefits continuation was denied by the plan administrator. The plan was administered by American General Life insurance. The case was originally filed in state court but was removed to federal court alleging jurisdiction under ERISA. The federal district court judge dismissed the case, concluding that the plan was established by a governmental entity and as such there was no ERISA jurisdiction. The judge remanded the case to proceed in state court to determine whether the plaintiff is subject to relief under state law (Glover v. American General Life Insurance Company (2021 BL 297552, N.D. Ill., no. 3:21-cv-50205, 8/6/21)).

    Former Director of University Family Law Clinic Who Was Denied a Permanent Position to Head the Clinic and a Professorship Alleges Ageism

    A Pennsylvania attorney who was over 60 when he was recruited to run the University of Pittsburgh’s School of Law Family Law Clinic has filed an age discrimination lawsuit under the Age Discrimination in Employment Act of 1967 after he was passed over when the position became a full-time faculty position and the university allegedly chose an attorney who was under 40 with little experience in parental custody issues routinely handled by the clinic (Congelio v. University of Pittsburgh (W.D. Pa. No. 2:21-cv-902, complaint filed 7/13/21)).

    According to the age discrimination complaint, the plaintiff alleged that the person who was hired for the position and as a faculty member was not licensed to practice law in Pennsylvania where the university and the law clinic are located. The plaintiff was a visiting professor at the law school when he was not selected for the position to continue running the clinic with the accompanying full-time faculty appointment.



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