Category: age discrimination

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

    HR and the Courts — January 2024 – CUPA-HR

    by CUPA-HR | January 10, 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.

    Medical School Surgeon Awarded $15 Million in Damages Resulting From Biased Harassment Investigation

    A federal trial court jury awarded a medical school surgeon $15 million in damages. The jury concluded that the Thomas Jefferson University Hospital medical school’s sex harassment investigation of the plaintiff, who was accused of harassment and sexually assaulting a female medical school resident, was biased against males (Abraham v. Thomas Jefferson University Hospital, et al (Case No. 2:20-cv-02967, E.D. Pa. 12/11/23)). The plaintiff claimed that prior to the incident, he had an “unblemished” reputation. He claimed that due to the medical school’s mishandling of the disciplinary proceeding, he had been labelled a “rapist,” had been ostracized by professional colleagues, and had suffered damages to his livelihood.

    The incident, subject to the lawsuit, involved a pool party at the plaintiff’s home in 2018. The plaintiff alleged that the medical resident became sexually aggressive toward him without his consent, and he was too intoxicated to resist. The plaintiff claims to have reported the incident to the hospital and found that the resident had filed a complaint against him, which resulted in the allegedly anti-male biased investigation and proceedings. Prior to the verdict, the medical school filed a motion for mistrial, alleging that the “belligerent” treatment of the court by the plaintiff’s counsel unduly influenced the jury. As of writing, there has been no action on the defendant’s motion.

    LSU Associate Athletic Director Claims Race and Sex Discrimination, Retaliation, and Hostile Work Environment in Lawsuit

    A federal district court judge granted partial summary judgement dismissing some charges brought against Louisiana State University by a terminated, former associate athletic director, but allowed some allegations of race and sex retaliatory discrimination and hostile work environment to move forward to a jury trial against the university’s board of supervisors (Lewis v. Board of Supervisors, Louisiana State University (2023 BL 437930, M.D. La., No. 3-21-cv-00198, Partial summary judgement, 12/1/23)).

    The university argued that the former associate athletic director was fired in a shake-up made by a new university football coach, which had nothing to do with the plaintiff’s race or sex. However, the new coach denied at deposition that he made the decision to fire the associate athletic director, creating a factual dispute that the court ruled should go to a jury. The federal judge concluded that the plaintiff’s allegations of a sexually hostile work environment should proceed to a jury trial as well as the allegations that she was denied a pay raise and ultimately fired because she is a Black woman.

    NCAA Proposes Plan to Allow Institutions to Pay Student-Athletes

    The NCAA proposed a plan in December 2023 to allow some institutions to invest at least $30,000 into an educational trust for at least half of their student-athletes to address the ongoing controversy over payments to student-athletes. Commentators point out that there will be many challenges to the new plan, including possibly running afoul of Title IX. Moreover, the plan will not make the pending Fair Labor Standards Act and National Labor Relations Act student-athlete claims go away.

    Commentators also point out that the proposal does not address the pending class action damage claim filed against the NCAA in the name, image and likeness (NIL) litigation, which is scheduled for trial in January 2025. Plaintiffs in that class action are claiming damages of $4.5 billion as a result of the NCAA’s past ban on NIL payments, which was overturned by the Supreme Court in NCAA v. Alston in August 2021 on anti-trust grounds.

    Federal Judge Rejects Religious Discrimination Claim Against Princeton

    A federal district court judge recently granted a motion to dismiss filed by Princeton University in a case brought by a former budget analyst who claims she was fired because of her religious beliefs when she refused to comply with COVID-19 protocols, including wearing a mask (McKinley . Princeton University (Case No. 3:22-cv-05069, D. N.J. 15/5/23)).

    The case was initially dismissed because the complaint did not mention any specific religion or set of beliefs. The court gave the plaintiff the opportunity to refile and correct that omission. The plaintiff’s amended complaint contained allegations that “my body is my temple” and “decries… any and all abuse against life.” In dismissing the case, the judge concluded that the plaintiff’s beliefs appear to be a collection of general moral commandments. The court found that the plaintiff’s personal moral code and beliefs do not constitute a comprehensive system of beliefs that could be called a religion.

    Appeals Court Reverses Dismissal of Former UMass Soccer Coach’s Age Discrimination Case

    A Massachusetts state appeals court reversed the dismissal of a former women’s soccer coach’s age discrimination complaint (Matz v. University of Massachusetts–Amherst (Mass App Ct No. 22-P-1162, 12/7/23)). The coach, who was 51 years old, filed the claim alleging that his termination was because the university wanted to hire a younger coach and that the stated reasons for his termination were a pretext.

    In dismissing the case, the university claimed the coach was terminated because of “an undisputed poor record” and “student criticism of his coaching abilities.” The appellate court recognized that the coach’s performance review concluded that he needed improvement and that there were student criticisms of his coaching abilities. Nonetheless, the appellate court held that the record contains “numerous positive reviews, inconsistent with the [2015 season] criticisms,” from which a jury could find he was terminated because of his age. The appellate court concluded that the plaintiff raised a claim by a member of a protected class, who was performing his job sufficiently, and his allegations could raise reasonable speculation about discrimination.

    California Jury Awards Nurse $41.5 million in Damages in Retaliatory Discharge, Whistleblower Case

    A neonatal intensive care nurse who was fired after 30 years of service to her employer was awarded a California jury verdict of $41.5 million in compensatory and punitive damages as a result of her discharge, which she claimed was in retaliation for raising safety issues. The California state court jury awarded the plaintiff $1.3 million in lost wages, $1.2 million in future lost wages, $1.5 million in past mental suffering, $7.5 million in future mental suffering, $15 million in punitive damages against the hospital, and $15 million in punitive damages against the Kaiser Foundation.

    According to the hospital, the plaintiff was fired after she was found reclining in the neonatal unit, talking on her personal phone with her feet resting on an isolette that had a neonatal infant inside. The plaintiff claimed that the stated reason for discharge was a pretext and that the real reason for her discharge was that she reported a supervisor who refused to report that the father of a patient was present in the hospital with a knife, creating an unsafe situation in the hospital (Gatchalian v. Kaiser Foundation Hospitals et. al. (Case No.  21STCV15300 Ca. Sup Ct. L.A. Cty. Jury Verdict 12/16/23)).



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  • HR and the Courts — December 2023 – CUPA-HR

    HR and the Courts — December 2023 – CUPA-HR

    by CUPA-HR | December 12, 2023

    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 of California May Test Federal Ban on Hiring Undocumented Workers

    The University of California may be the first public institution to challenge whether the 1986 Immigration Reform and Control Act (IRCA) applies to state entities, including public colleges and universities. The IRCA prohibits U. S. employers from hiring undocumented workers.

    On November 20, 2023, the University of California postponed plans to go forward with a self-imposed deadline of November 30, 2023, to initiate a plan to hire undocumented workers. The university has decided to study the issue further before deciding on a specific course of action. The Supreme Court has dealt with the constitutionality of federal regulation of state employers on multiple occasions in the past, having come down on both sides of the issue. We will follow developments in this area as they unfold.

    Texas Community College Wins Suit Brought by Professor Who Commented on Race and COVID-19 Policies

    Collin College in Texas prevailed in partial summary judgement against a former professor who sued alleging First Amendment free speech retaliation in the non-renewal of his teaching contract. He claimed his contract was terminated because of his outspoken views as a private citizen on public issues including race relations in Dallas, Confederate monuments and his criticism of the college’s COVID-19 policies.

    The court granted part of the college’s motion to dismiss because the college’s policies were not facially unconstitutional. However, the federal court denied each side’s motions for summary judgement on the professor’s claims that the college’s policies were overboard in their restriction of his speech, holding that the issue should be reserved for decision until factual questions are resolved (Phillips v. Collin Community College District (E.D. Tex. No. 22-cv-00184, 11/4/23)).

    Law Professor Sues Northwestern University, Claiming Age Discrimination

    A 78-year-old law professor has sued his university employer claiming age-based salary discrimination. The professor, who is tenured and taught at the law school for 42 years, claims he has been consistently paid substantially less than “significantly younger, less experienced and less tenured” comparators (Postlewaite v. Northwestern University (N.D. Ill. No 1:23-cv-15729, Comp filed 11/7/23)).

    The professor claims to be “a preeminent scholar” in the field of tax law and started his law school’s lucrative Master of Laws in Taxation program, which he claims has been the school’s “highest ranked specialty department” for 17 of the last 19 years. The professor alleges that he has been awarded lower base-salary increases than his younger counterparts. He further alleges that for the academic year 2022-23, his salary was $7,000 less than the 50th percentile and $55,000 less than the 75th percentile, even though those percentiles equated to 20 and 32 years, respectively, of total teaching while he has completed 49 years of total legal academic teaching.

    The lawsuit was filed in federal court and alleges violation of the federal Age Discrimination in Employment Act and the Illinois Human Rights Act.

    Supreme Court Declines to Review Decision on UPS Driver’s Disability Accommodation

    The Supreme Court declined to review a 4th U.S. Circuit Court of Appeals case in which the 4th Circuit upheld the dismissal of a driver’s disability accommodation request. The driver requested that he be allowed to drive a smaller truck with softer suspension to accommodate his hip and back bursitis disability, which caused him severe pain (Hannah v. United Parcel Service (Case No. 23-264 US Sup Ct, cert den. 11/6/23)).

    The 4th Circuit decision, which the Supreme Court let stand, concluded that the employee’s request for an accommodation was not reasonable because the request altered the “essential elements” of the employee’s job. The court concluded that if the driver was given the accommodation to drive a smaller truck, he would not be able to complete the daily work load requirement of his existing driver position.

    Tesla Allowed to Ban Union Shirts

    The 5th U.S. Circuit Court of Appeals overturned an NLRB decision holding that Tesla violated the NLRA when it required its production employees to wear black Tesla-monogrammed uniform work shirts and did not allow production workers to wear black union-insignia work shirts. The decision of the three-judge panel was unanimous in overturning the NLRB ruling against Tesla (Tesla v. NLRB (5th Cir. No. 22-60493 11/14/23)).

    While Tesla had banned the wearing of union-insignia work shirts, it allowed production employees to wear Tesla-insignia work shirts with a union insignia pinned on the shirt. Tesla had argued unsuccessfully to the NLRB that its rule was necessary to prevent damage to cars and to help supervisors distinguish between production employees and other employees at the company’s California facility. The Court of Appeals decision allows Tesla to continue to enforce its prior policy requiring Tesla-insignia work shirts, with the employee’s option of pinning on a union insignia.

    Appeals Court Affirms Dismissal of Gymnastic Coach’s Wrongful Termination and Defamation Lawsuits

    A Pennsylvania state appellate court affirmed a trial court dismissal of a former Pennsylvania State University gymnastic coach’s lawsuit. The former coach alleged defamation and violation of his employment contract when the university terminated his contract after investigating allegations that he created a hostile environment for gymnasts. The three-judge appellate panel adopted the decision of the trial court judge, concluding that the university had good cause for firing the coach and that the athletic director’s statement about prior accusations against him had not been defamatory (Thompson v. Pennsylvania State University (Case no. 1460 MDA 2022, 11/28/23)).

    The appeals court ruled that the gymnastic coach’s high profile in collegiate sports made him a limited public figure and that the university’s reaction to allegations of mistreatment of athletes were matters of public concern. That meant that the plaintiff must show “actual malice” in order to prove defamation in these circumstances. The appellate court concluded that the university’s actions did not rise to the level of “actual malice.”



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | December 15, 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.

    Federal Contractor Vaccine Mandate Blocked Nationwide By Georgia Federal Court, Georgia Universities Testified in Favor of the Injunction

    A federal district court judge in Georgia issued a nationwide injunction blocking the Biden administration’s vaccine mandate applicable to all federal contractors (Georgia v. Biden (S.D. Ga., No. 21-cv-00163, 12/7/21)). The mandate was scheduled to go into effective January 4, 2022 and had been the subject of several lawsuits in multiple states attempting to block the mandate.

    Georgia was joined by seven states in the litigation. Representatives from Georgia universities testified at the injunction hearing that the mandate would be expensive, onerous and cost them valuable employees who have not yet presented proof of vaccination. The judge ruled that blocking the mandate was not because the vaccine would not be effective in reducing the spread of COVID-19, but rather that President Biden did not have the power to issue such an Executive Order. The judge rued that the mandate went beyond the President’s power to issue orders “addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting.”

    College Employee’s Discussion With Coworkers About Institutional Racism Is Basis For Discriminatory Discharge and Retaliation Claims

    A federal district court judge recently ruled that a discriminatory discharge and retaliation case, based on the plaintiff’s allegations that he was terminated because he facilitated a discussion of institutional racism among coworkers, states a claim of unlawful discrimination based on race. Prior to discharge, the plaintiff was in charge of the college’s program assisting high school students in danger of dropping out (Debro v. Contra Costa Community College (2021 BL 456753, N.D. Cal. No. 3:20-cv-08876, 11/30/21)).

    The plaintiff was given permission in advance to facilitate a discussion of institutional racism among coworkers. Following the discussion, two white subordinates filed race discrimination claims alleging that the plaintiff made them uncomfortable expressing their own views on institutional racism. The plaintiff was subsequently fired by the college after it was concluded that he violated the college’s rules against harassment based on race as he made others uncomfortable expressing their views on institutional racism.

    The federal district court judge concluded that the plaintiff’s complaint adequately stated claims of race discrimination in violation of both federal and state law and will move forward to discovery and trial.

    Labor Advocacy Group Files Complaint With NLRB Alleging That the NCAA Has Misclassified College and University Sports Players as Student-Athletes as Opposed to Employees

    A new advocacy group, the College Basketball Players Association, has filed a complaint with the Indianapolis office of the National Labor Relations Board (NLRB) alleging that the NCAA is violating federal labor law by misclassifying college sports players as student-athletes as opposed to employees. In 2015, the NLRB rejected an attempt by Northwestern University football players to form a union concluding that it would not advance the purposes of U.S. labor law. However, more recently the new NLRB general counsel publicly stated that in her view at least some college athletes are employees. This case could be the vehicle the general counsel may use to bring this issue before the NLRB for review. CUPA-HR will watch this case as it progresses and report on future developments.

    Union Collective Bargaining Between Graduate and Undergraduate Student Teachers and Researchers Continues at Some Private Institutions

    Harvard University and the United Auto Workers (UAW) union announced an agreement on a new four-year collective bargaining agreement in mid-November just hours before a planned strike by a student employee bargaining unit at the university. The Harvard Graduate Students Union is represented by the UAW and consists of a bargaining unit of 4,500 graduate and undergraduate students who work as teachers and researchers. Details of the new four-year contract were not immediately disclosed or available.

    56-Year-Old Baseball Coaching Applicant Loses Age Discrimination Lawsuit Against University Where 31-Year-Old Applicant Was Chosen

    The Seventh Circuit U.S. Court of Appeals (covering Illinois, Wisconsin and Indiana) affirmed a summary judgement decision by the trial court in favor of Indiana University South Bend, rejecting the age discrimination lawsuit filed by a 56-year-old applicant because the university hired a 31-year-old applicant. The court concluded that there was no evidence that the plaintiff was discriminated against because of his age (Reinebold v. Bruce (2021 BL 442817, 7th Cir., No. 21-1092, 11/18/21)).

    There were 94 applicants for the position of head baseball coach. The university chose 10 applicants for telephone interviews, including the plaintiff. The plaintiff was not among the four chosen from the telephone interviews for a final in-person interview. While the plaintiff had a better career win/loss percentage that the 31-year-old applicant chosen as the new head coach, all four of the telephone interviewers concluded that plaintiff’s presentation was not good, including one interviewer who concluded that the plaintiff’s interview was “One of the worst interviews he had ever experienced.”

    The court concluded that one of the interviewer’s remarks to his barber that “We chose the younger applicant” was a stray remark and did not provide evidence of age discrimination.

    EEOC Loses Attempt to Invalidate Employer’s Negotiation Defense to an Equal Pay Act Claim Brought By a School District Superintendent Who Was Paid Less Than Her Male Predecessor 

    The EEOC recently filed a case on behalf of a school district superintendent under the Equal Pay Act alleging that the school district violated the law by paying the new female superintendent less than it paid her male predecessor.

    The school district defended, alleging that the female superintendent failed to negotiate a higher salary. The EEOC argued that failure to negotiate a higher salary is not a valid defense to an Equal Pay Act claim. The school district countered that the Supreme Court has never ruled that failure to negotiate a higher salary is not a factor other than sex, and other courts have held that that is a valid factor other than sex in these circumstances. The federal district court judge hearing the case sided with the school district holding that, for now, and subject to further consideration, the EEOC failed to show that the defense could not be raised (EEOC v. Hunter–Tannersville Central School District (2021 Bl 460087, N.D.N.Y. No. 1:21-cv-00352, 12/2/21)). The judge concluded whether or not the defense is valid is a decision for the U.S. Court of Appeals.



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  • House Passes Bills to Protect Older Job Applicants and Strengthen Domestic Violence Prevention and Survivor Support Services – CUPA-HR

    House Passes Bills to Protect Older Job Applicants and Strengthen Domestic Violence Prevention and Survivor Support Services – CUPA-HR

    by CUPA-HR | November 9, 2021

    On October 26 and November 4, 2021, the House of Representatives passed H.R. 2119, the Family Violence Prevention and Services Improvement Act of 2021, and H.R. 3992, the Protect Older Job Applicants (POJA) Act of 2021, respectively. Both bills passed by a close bipartisan vote — the former by a vote of 228-200 and the latter 224-200 — and are supported by President Biden.

    POJA Act

    As originally written, the POJA Act amends the Age Discrimination in Employment Act of 1967 (ADEA) to extend the prohibition of limiting, segregating or classifying by employers of employees to job applicants. The bill comes after recent rulings in the Seventh and Eleventh Circuit Courts of Appeals that allow employers to use facially neutral hiring practices, which some have accused of being discriminatory against older workers. As such, the POJA Act amends the ADEA to make clear that the disparate impact provision in the original statute protects older “applicants for employment” in addition to those already employed.

    Before the final vote on the bill, the House also adopted an amendment to the POJA Act that would require the Equal Employment Opportunity Commission to conduct a study on the number of job applicants impacted by age discrimination in the job application process and issue recommendations on addressing age discrimination in the job application process.

    Family Violence Prevention and Services Improvement Act

    The Family Violence Prevention and Services Improvement Act amends the Family Violence Prevention and Services Act to reauthorize and increase funding for programs focused on preventing family and domestic violence and protecting survivors. One provision addressing higher education authorizes the Secretary of Health and Human Services to now include institutions of higher education among the entities eligible for departmental grants to “conduct domestic violence, dating violence and family violence research or evaluation.”

    Both the Family Violence Prevention and Services Improvement Act and the POJA Act now face the Senate where passage is uncertain as both require significant support from Republicans to bypass the sixty-vote filibuster threshold.

    CUPA-HR will keep members apprised of any actions or votes taken by the Senate on these bills.



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