Category: Compliance/Legal Issues

  • HR and the Courts — March 2025

    HR and the Courts — March 2025

    by CUPA-HR | March 11, 2025

    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 Judge Orders a Halt to Part of the Trump Administration’s Executive Orders Targeting DEI Plans It Considers Illegal and Discriminatory

    A federal district court judge in Baltimore issued a preliminary injunction that temporarily halts enforcement of the Trump administration’s executive orders targeting government contractors’ DEI plans. The judge granted in part the petitioner’s request for an injunction, holding that several provisions of the executive orders are unconstitutionally vague. Other executive order provisions were held to violate the Constitution’s free speech provisions. The lead plaintiff is the National Association of Diversity Officers in Higher Education, who was joined by the American Association of University Professors, the Restaurant Opportunities Centers United, and the City of Baltimore (National Association of Diversity Officers in Higher Education, et al v. Trump, et al (D. Md., No. 1:25-cv-00333. 2/21/25)).

    The judge concluded that the challengers are likely to prevail on their allegations that the executive orders’ threatened enforcement, including contract termination, is “unconstitutionally vague on their face.” The injunction does not block the attorney general from pursuing investigations into allegedly illegal DEI programs.

    Education Department “Dear Colleague” Letter Broadly Interprets the Supreme Court Decision in SFFA v. Harvard to Apply to All Campus Activities

    The acting assistant secretary for the Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter late Friday, February 14, that broadly interprets the Supreme Court decision outlawing the use of race in college admissions in Students for Fair Admissions v. Harvard to apply to all campus policies and activities. The letter warns colleges and universities against using race as a preference in any policy and activity, and encourages anyone believing that an institution has violated civil rights laws to contact the Office for Civil Rights (OCR).

    The letter directly criticizes the development of DEI activities on campus and warns that the department will not tolerate overt or covert race discrimination, which, it concluded, has become “widespread at our nation’s educational institutions.” The letter asserts that educational institutions have “toxically indoctrinated” students with the false premise that the U.S. is built upon “systemic and structural racism.” The letter indicates that the department would take appropriate steps to assess compliance with the civil rights laws no later than 14 days after the letter was issued.

    On March 1, the Education Department released an FAQ offering further guidance.

    Disparate Impact Legal Liability Being Targeted as Unlawful in Anti-DEI Litigation

    The disparate impact legal theory of employer liability allows plaintiffs to prevail in discrimination litigation without proving discriminatory intent. Under the disparate impact liability theory, an employer can be held liable for unlawful discrimination if a neutral policy applied to all employees has a statistically adverse impact on a minority group. In such a circumstance, the employer is held liable without the necessity to prove that the employer intended to discriminate against any particular group.

    The Supreme Court adopted the disparate impact liability theory in the landmark case Griggs v. Duke Power in 1971. Conservatives have long held that the disparate impact liability theory unfairly punishes employers for unintentional practices and overemphasizes protected traits in HR decision-making. It will take a Supreme Court decision to reverse current precedent. The Trump administration may adopt an enforcement position at the Department of Justice and elsewhere in which they do not prosecute disparate impact cases. Such an enforcement decision, should it be made, would likely be subject to court challenge.

    Collegiate Baseball Player Sues NCAA for Anti-Trust Violation Regarding Four-Year Eligibility Restriction

    A collegiate baseball player has sued the NCAA, claiming its four-year eligibility restriction on Division I baseball violates anti-trust laws (Sanchez v. NCAA (E.D. Tenn., No. 3:25-cv-00062 Comp Filed 2/12/25)). The plaintiff is seeking to play baseball at the University of Tennessee this spring. He previously played one year at a junior college and then the last three years at the University of North Carolina. Under NCAA rules, he is not allowed to play this spring because his junior college playing year used up one of his four eligibility years.

    In response to a similar lawsuit (Pavia v. NCAA), the NCAA granted a limited waiver of the four-year eligibility rule for the 2025-26 season for Division I football. That waiver, however, does not apply to spring sports such as baseball.

    Civil Rights Groups Sue Trump Administration to Stop Anti-DEI Initiatives and Elimination of Transgender Protection of Federal Government Employees

    A group of civil rights organizations lead by the National Urban League have sued the Trump administration in an attempt to stop the administration’s anti-DEI initiatives and its elimination of protection of transgender federal government employees (National Urban League v. Trump (D.D.C. 1:25-cv-00471, Complaint 2/19/25)). The lawsuit seeks to halt the enforcement of three Trump executive orders: “EO 14151: Ending Radical and Wasteful DEI Programs and Preferencing,” “EO 14168: Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” and “EO 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

    The lawsuit alleges that the executive orders are unconstitutional because they suppress free speech. The groups allege that the executive orders target specific “content” and “viewpoints” and use “vague and subjective terms.” The plaintiffs argue that this makes them “constitutionally void for vagueness” under past Supreme Court precedent.

    OFCCP Is Preparing to Cut Staff by Approximately 90% and Reduce Offices from 55 to 4

    The acting director of the Department of Labor’s Office of Federal Contract Compliance Programs announced on February 25 in a memo it is preparing to cut employees from 479 to 50 and reduce offices from 55 to four. The OFCCP has already halted audits and investigations of government contractors’ affirmative action plans pursuant to direction from the Trump administration’s executive orders. As a result of these executive orders eliminating much of the OFCCP’s responsibilities, the OFCCP will have statutory authority to enforce only Section 503 of the Rehabilitation Act and the Vietnam War Veterans Readjustment Act.

    Under the OFCCP reduction plan, the office would eliminate its Division of Enforcement, which is comprised of labor economists and statisticians who worked on enforcement and analysis of systemic cases, which will no longer be part of the OFCCP enforcement responsibilities.

    Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.



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  • Department of Education Releases FAQ on February 14 “Dear Colleague” Letter

    Department of Education Releases FAQ on February 14 “Dear Colleague” Letter

    by CUPA-HR | March 3, 2025

    On March 1, the Department of Education’s Office for Civil Rights (OCR) released a Frequently Asked Questions  document providing further guidance on OCR’s February 14, 2025, “Dear Colleague” letter.

    The February 14 “Dear Colleague” Letter

    The “Dear Colleague” letter outlines OCR’s enforcement position with respect to the legal requirements “under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other relevant authorities,” in light of the Supreme Court’s 2023 ruling in Students for Fair Admissions v. Harvard (SFFA). The letter states SFFA “clarified that the use of racial preferences in college admissions is unlawful, sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI.” OCR declares in the letter that, in accordance with SFFA, federal law “prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.” The letter states that OCR will “take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date,” which was February 28. OCR also notes in the letter that institutions that fail to comply “face potential loss of federal funding.”

    CUPA-HR joined the American Council on Education and dozens of other higher education associations in a February 25, 2025, letter to OCR noting  that the language in the “Dear Colleague” letter is ambiguous and, as a result, campuses are confused about their compliance responsibilities. CUPA-HR, ACE and the other associations requested in the letter that the department rescind the “Dear Colleague” letter and “engage with the higher education community to ensure a clear understanding of their legal obligations in this area.”

    The FAQ

    The March 1, 2025, FAQ provides details on how to file a discrimination complaint, the department’s view on what type of activity is unlawful and the department’s approach to enforcement.

    Enforcement

    With respect to the department’s approach to enforcement, the FAQ states that if OCR “determines that a school failed to comply with the civil rights laws that it enforces, [it] will contact the school and will attempt to secure its willingness to negotiate a voluntary resolution agreement.” The FAQ then states that “if a school is unwilling to negotiate a resolution agreement, OCR will inform the school of the consequences, which may result in OCR initiating enforcement through administrative proceedings or referring the case to the Department of Justice for judicial proceedings.”

    Unlawful Activity

    OCR notes in the FAQ that OCR’s assessment of whether an institution’s policies and programs are lawful “depends on the facts and circumstances of each case,” but provides more details on specific activities that do or may violate the law. The FAQ notes that it regards the following activities as unlawful:

    • preferences and stereotypes as a factor in admissions, hiring, promotion, scholarship, prizes, administrative support, sanctions, discipline, and other programs and activities;
    • any programming, graduation ceremonies, housing, or any other aspect of school life that allows one race but not another or otherwise separates students, faculty, or staff based on race; and
    • policies that appear neutral on their face but are made with racially discriminatory purpose.

    With respect to the last bullet, OCR states in determining “whether a school acted with a racially discriminatory purpose, [it] may analyze different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent.” OCR provides the following “non-exhaustive list,” which may include:

    • whether members of a particular race were treated differently than similarly situated students of other races;
    • the historical background or administrative history of the policy or decision;
    • whether there was a departure from normal procedures in making the policy or decision;
    • whether there was a pattern regarding policies or decisions towards members of a particular race;
    • statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race;
    • whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race; and
    • the school’s history and stated policy of using racial classifications and race-based policies to further DEI objectives, “equity,” a racially oriented vision of social justice, or similar goals.

    The FAQ also describes activities that could be unlawful. Specifically, the FAQ notes that “extreme practices at a university — such as requiring students to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers, pressuring them to participate in protests or take certain positions on racially charged issues, investigating or sanctioning them for dissenting on racially charged issues through DEI or similar university offices, mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes, and assigning them coursework that requires them to identify by race and then complete tasks differentiated by race — are all forms of school-on-student harassment that could create a hostile environment under Title VI.”

    DEI?

    The FAQ notes, “whether a policy or program violates Title VI does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion,’” but rather whether it discriminates “based on race, color, or national origin.” The FAQ notes that institutions “may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races,” or programming that “discourages members of all races from attending, either by excluding or discouraging students of a particular race or races.”

    The FAQ also notes, however, that “programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race.” OCR also states that “educational, cultural, or historical observances — such as Black History Month, International Holocaust Remembrance Day, or similar events — that celebrate or recognize historical events and contributions, and promote awareness,” are lawful “so long as they do not engage in racial exclusion or discrimination.”

    Next Steps

    CUPA-HR will continue to monitor and keep members apprised of any further developments.



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  • Preliminary Injunction Issued Against DEI Provisions in Two Executive Orders

    Preliminary Injunction Issued Against DEI Provisions in Two Executive Orders

    by CUPA-HR | February 24, 2025

    On February 21, a U.S. district judge issued a preliminary injunction against portions of two of the Trump administration’s executive orders regarding DEI programs. The decision, issued in U.S. District Court for the District of Maryland, blocks federal agencies from taking action to withhold federal funding from federal contractors that conduct programs or initiatives related to DEI.

    Broadly speaking, “EO 14151: Ending Radical and Wasteful Government DEI Programs and Preferences” and “EO 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity” state that DEI and DEIA programs and initiatives violate federal civil rights law, and therefore terminate all DEI programs throughout the federal government. EO 14173 orders federal agencies to incorporate clauses in all federal contracts requiring each funding recipient to attest to compliance with all federal antidiscrimination laws and affirm that it does not operate any DEI programs.

    The preliminary injunction strikes down three separate provisions across these executive orders:

    • EO 14151 requires the federal government to terminate all equity-related grants or contracts within 60 days (known as the “Termination Provision”).
    • EO 14173 requires that every grant recipient or federal contractor affirm its compliance with all federal antidiscrimination laws and that it does not operate any DEI programs (known as the “Certification Provision”).
    • EO 14173 directs the attorney general, in consultation with other relevant agencies, to promulgate a report with recommendations to enforce civil rights laws and encourage the private sector to end DEI practices. The report is required to identify “the most egregious and discriminatory DEI practitioners in each sector of concern.” It also requires each agency to identify up to nine potential civil compliance investigations as a way to deter DEI programs or principles. The EO lists institutions of higher education with endowments over $1 billion as potential targets for the civil compliance investigations (known as the “Enforcement Threat Provision”).

    The National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the mayor and city council of Baltimore, Maryland, challenged these three provisions, arguing that they violate free speech rights under the First Amendment and are unconstitutionally vague — violating the Fifth Amendment. Plaintiffs additionally alleged four types of irreparable harm: threat of loss of funds, uncertainty regarding future operations, loss of reputation, and chilled speech.

    The court ultimately ruled that the plaintiffs were likely to succeed on their constitutional complaints and adequately demonstrated a sufficient likelihood of irreparable harm. The decision concluded that EO 14173 offers no guidance or notice of what the government now considers illegal DEI, and that plaintiffs showed “substantial evidence of the risks of such arbitrariness,” and that by “threatening the private sector with enforcement actions based on those vague, undefined standards, the Enforcement Threat Provision is facially unconstitutional under the due process clause of the Fifth Amendment.”

    The preliminary injunction means that federal agencies may not:

    • pause, freeze, impede, block, cancel or terminate any awards, contracts or obligations, or change any current obligation terms on the basis of the Termination Provision;
    • require any contractor to make any certification or other representation pursuant to the Certification Provision; or
    • bring any enforcement action under the False Claims Act in relation to the Enforcement Threat Provision.

    The injunction does not speak to actions that federal agencies may have already taken in response to both executive orders. Nonetheless, the Trump administration will likely appeal the ruling. Given that the policies raised in these executive orders will hold widespread implications for federal contractors in the higher education community, CUPA-HR will continue to share further developments.



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  • Education Department Publishes Guidance Letter Deeming Race-Conscious Programs, Activities and Practices Illegal

    Education Department Publishes Guidance Letter Deeming Race-Conscious Programs, Activities and Practices Illegal

    by CUPA-HR | February 18, 2025

    On February 14, the Department of Education’s Office for Civil Rights (OCR) published a “Dear Colleague” letter “to clarify and reaffirm the nondiscrimination obligations of schools … that receive federal financial assistance” from the department. The letter specifically states that “Federal law … prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life” (emphasis added).

    The department warns that “institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding,” and cites the government’s authority to do so under “Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the U.S. Constitution, and other relevant authorities.”

    The letter reiterates institutions’ existing legal requirements under federal antidiscrimination laws and is intended to provide clarity to institutions of their nondiscrimination obligations. However, in addition to pointing to existing federal antidiscrimination laws, OCR expands upon the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA) — which banned the use of race-conscious admissions practices at institutions of higher education — to apply more broadly to programs and practices at institutions. Specifically, OCR states that the court’s decision and applicable federal law prohibits covered entities “from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”

    OCR provides a few examples of practices that would be illegal under federal antidiscrimination law. One example, which was prohibited in the text of the SFFA decision, is using “students’ personal essays, writing samples, participation in extracurriculars, or other cues” as a means to determine a student’s race to grant preferences to that individual. Additionally, the letter states that using proxies like the one just described is illegal on the systematic level, stating that it is unlawful for institutions to eliminate standardized testing to “achieve a desired racial balance or to increase racial diversity.” In both examples, OCR appears focused on the motive for the action rather than the action itself. Thus, an institution can choose to use or not use standardized tests or focus on certain criteria in applications as long it is not doing so for an impermissible reason.

    The letter also says that other programs violate antidiscrimination laws in less direct ways. Specifically, the letter states that “DEI programs … frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not” and that “such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes.” They assert that these programs ultimately deny students the ability to fully participate in “the life of a school.”

    The letter states that the Department of Education will begin to assess institutional compliance with antidiscrimination law and regulations no later than 14 days after of the date of publication of the letter. In the letter, OCR advises schools to:

    • Ensure that their policies and actions comply with existing civil rights law.
    • Cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends.
    • Cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.

    Possible Implications for Higher Education HR Professionals

    As noted above, the letter specifies using race in hiring, promotion and compensation decisions is prohibited under federal law, though the Department of Education does not provide examples of hiring and compensation practices that could be violations of such laws. While the primary federal laws prohibiting discrimination in employment are Title VII of the Civil Rights Act of 1964 and similar equal employment opportunity laws enforced by the Equal Employment Opportunity Commission (EEOC), Title VI can apply to employment decisions. It is unclear how the department intends to enforce this letter with respect to hiring, promotion and compensation practices and whether the Department of Labor or the EEOC will provide further guidance. CUPA-HR intends to seek clarification from the Education Department and the other agencies.

    CUPA-HR is assessing the impact that this enforcement letter will have on institutions and will keep members apprised of further developments related to the Trump administration’s DEI orders.



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  • HR and the Courts — February 2025

    HR and the Courts — February 2025

    by CUPA-HR | February 12, 2025

    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 Reports That It Collected a Record $700 Million for Workers in 2024 in Discrimination Claims

    The Equal Employment Opportunity Commission collected nearly $700 million for workers in 2024, eclipsing the previous record of $660 million collected in 2023. The agency reported that almost $470 million was collected for private sector, state and local workers through mediation, conciliation and administrative settlements. Nearly $200 million was collected through mediation, conciliation and administrative settlements for federal workers. An additional $40 million was collected for employees through litigation.

    Of the 111 lawsuits filed by the agency in fiscal year 2024, 40% involved claims under the Americans with Disabilities Act and 6% involved claims under the Age Discrimination in Employment Act. Most of the remainder involved Title VII claims of race, color, religion, sex, or national origin discrimination. More than a dozen of these lawsuits involved systemic allegations raised for multiple employees.

    Trump Administration Firing of NLRB and EEOC Members Leaves Agencies Without a Quorum to Do Business

    The Trump administration discharged, in unprecedented fashion, sitting members of the National Labor Relations Board and the Equal Employment Opportunity Commission, leaving both agencies without a quorum to do business. The Supreme Court has ruled that the NLRB cannot issue decisions without a quorum. This means that the NLRB cannot decide unfair labor practice cases or decide appeals of union election cases until it regains three members confirmed by the Senate. In addition, the Trump administration terminated the sitting independent NLRB general counsel who makes decisions on what cases to prosecute before the board.

    Without a quorum, the EEOC cannot issue new regulations or guidance, nor revoke or edit existing ones. In addition, without a quorum, the EEOC cannot vote to initiate new class action cases and is limited in taking on new enforcement litigation.

    Court of Appeals Revives Challenge to Fellowship Program — Case Dismissed After Mutual Settlement

    The 2nd U.S. Circuit Court of Appeals (covering Connecticut, New York and Vermont) reversed a trial judge’s decision dismissing a challenge to a fellowship program at Pfizer. To address challenges in recruitment, retention and promotion of diverse employees, Pfizer created and reserved its fellowship program for Black/African American, Latino/Hispanic, and Native American students. The plaintiffs contended that the fellowship program unlawfully discriminated against non-minority individuals (Do No Harm v. Pfizer Inc. (2nd Cir. No. 23-15, Opinion 1/10/25)). The three-judge panel remanded the case back to the trial judge to review whether the dismissal was proper.

    This case is another example of increased scrutiny of DEI programs in the wake of the Supreme Court’s decision on Students for Fair Admissions v. Harvard, which curtailed the use of race in college admissions. Bloomberg reported that the parties reached an agreement to settle the case. The full settlement is not available but it appears the fellowship program will end with the induction of the current year’s recipients.

    NLRB’s Authority to Impose Employee Remedial Orders for “Consequential” Damages Trimmed by Court of Appeals

    The 3rd U.S. Circuit Court of Appeals recently trimmed the scope of permissible remedial orders granted by the NLRB to employees who win unfair labor practice cases. The appeals court drew a distinction between traditional make-whole remedies for employees who are fired as a result of an unfair labor practice and traditional back pay and reinstatement. The latter continues to be permissible, but the NLRB’s authority to order “consequential” damages for reimbursement for late credit card fees, medical expenses and the like are not permissible (NLRB v. Starbucks (3rd Cir. No. 23-1953, 12/27/24)).

    As a practical matter, absent a decision on this issue by the Supreme Court, the NLRB will continue to assert its authority to render consequential damage awards, but the awards will not be enforceable in the states covered by the 3rd Circuit, which includes Delaware, New Jersey and Pennsylvania.

    Hostile Work Environment Challenges to DEI Training Pass Summary Judgment Stage — First Amendment Claims Have Been Filed on Both Sides

    Bloomberg reports that a number of challenges to DEI training — on the grounds that they create a hostile work environment for White employees — are surviving the summary judgment stage of initial litigation. Nonetheless, commentators conclude that most of that litigation will ultimately fail to clear the hurdle that requires the action to be “pervasive” in order to prove a hostile work environment case. Commentators also point out that the anti-DEI movement is likely to grow during the new Trump administration.

    In addition to hostile work environment cases, public employees have challenged public employers under the First Amendment for forcing the employee to listen to and affirm DEI concepts. However, employers that support DEI training have successfully used the First Amendment to challenge a Florida law restricting the use of certain workplace DEI training concepts (Honeyfund.com Inc. v. Florida (11th Cir. No. 22-13135, 3/4/24)).

    ACLU, NAACP and Professors Raise First and Fourteenth Amendment Challenge to Alabama Law Barring Public Funding of DEI Programs

    The Alabama chapter of the American Civil Liberties Union, the NAACP, and a group of Alabama professors have filed suit in federal court, alleging that the new Alabama state law barring public funding of DEI programs violates the First and Fourteenth Amendments of the U.S. Constitution (Simon v. Ivey (N.D. Ala. No. 2:25-cv-00057, complaint 1/14/25)). The complaint alleges that the Alabama law restricts the funding of teaching “academic viewpoints” deemed to be “divisive” and prohibits funding of student groups espousing such views in violation of the First and Fourteenth Amendments.

    The complaint further alleges that such viewpoint bans disproportionately affect Black students and Black faculty members. The complaint also alleges that the Alabama law violates minority students’ and professors’ right to equal protection from intentional discrimination and freedom of association under the First Amendment. The complaint further argues that the Alabama law should be struck down as “void for vagueness” under the applicable constitutional standard.

    U.S. Supreme Court Eases Standard for Employers to Prove Employees Are Not Entitled to Overtime Pay

    The U.S. Supreme Court rejected a heightened standard of proof needed to show that employees are exempt from the Fair Labor Standards Act overtime requirements (E.M.D. Sales v. Carrera (U.S. No. 23-217 Opinion 1/15/25)). This will make it somewhat easier for employers to show that employees are not entitled to overtime pay. The Supreme Court held in a unanimous decision written by Justice Kavanaugh that employers are subject to the regular “preponderance of the evidence” rule in proving that an employee is not subject to the applicable overtime rules rather than the higher “clear and convincing” standard.

    Justice Kavanaugh concluded on behalf of a unanimous court that, where a law is silent on the applicable standard of proof, as the FLSA is, the regular preponderance of the evidence rule applies. Under this standard, an employer must show that it is more likely than not that the employee is exempt from the overtime requirements.



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  • Trump Signs Executive Order to Ban Transgender Student-Athletes from Participation in Women’s Sports

    Trump Signs Executive Order to Ban Transgender Student-Athletes from Participation in Women’s Sports

    by CUPA-HR | February 11, 2025

    On February 5, President Trump signed an executive order titled “Keeping Men Out of Women’s Sports.” The order aims to bar transgender women and girls from participating in women’s sports by directing agencies to withdraw federal funding from schools that refuse to comply with the order.

    The EO claims that, in recent years, educational institutions and athletic associations have allowed men to compete in women’s sports, which the Trump administration believes denies women and girls equal opportunity to participate in competitive sports, thus violating Title IX. As a result, the EO sets policy to “rescind all funds from educational programs that deprive women and girls of fair athletic opportunities” and to “oppose male competitive participation in women’s sports more broadly.”

    With respect to the specific actions ordered, the EO directs the secretary of education to ensure compliance with the court order to vacate the Biden administration’s Title IX rule and to take other actions to ensure that the 2024 regulations do not have effect. It also directs the secretary to take action to “protect all-female athletic opportunities” by setting forth regulations and policy guidance that clearly specifies and clarifies “that women’s sports are reserved for women.”

    Notably, the EO further directs all federal agencies to review grants to educational programs and to rescind funding to programs that fail to comply with policy set forth in the EO. Institutions with grant programs deemed to be noncompliant with this order could, therefore, risk losing federal funding for that program.

    The EO also seeks quick enforcement by federal agencies. The EO orders the Department of Education to prioritize Title IX enforcement actions against educational institutions and athletic associations that “deny female students an equal opportunity to participate in sports and athletic events.” The Department of Justice is also tasked with providing resources to relevant agencies to ensure “expeditious enforcement” of the policy set forth in the EO.

    Finally, the EO directs the assistant to the president for domestic policy to convene both major athletic organizations and state attorneys general to promote policies consistent with Title IX and identify best practices in enforcing equal opportunities for women to participate in sports.

    On February 6, the NCAA updated its policy regarding transgender student-athlete participation in response to the EO. According to the NCAA, the new policy limits competition in women’s sports to student-athletes assigned female at birth, but it allows student-athletes assigned male at birth to practice with women’s teams and receive benefits while practicing with them. For men’s sports, student-athletes may participate in practice and competition regardless of their sex assigned at birth or their gender identity, assuming all other eligibility requirements are met.

    Institutions should review their policies and practices in light of the EO and the NCAA’s policy change. CUPA-HR will continue to monitor for Title IX updates and keep members apprised of new enforcement under the Trump administration.



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  • Department of Education Releases Enforcement Guidance for Title IX

    Department of Education Releases Enforcement Guidance for Title IX

    by CUPA-HR | February 5, 2025

    On February 4, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter to institutions of higher education regarding enforcement of Title IX regulations. Specifically, the letter reaffirms that OCR will enforce the first Trump administration’s Title IX rule instead of the Biden administration’s Title IX rule.

    As a reminder, in early January of this year, a judge from the Eastern District of Kentucky Court struck down the Biden administration’s rule nationwide, reverting enforcement back to the 2020 Title IX regulations for all institutions. In the Dear Colleague letter, OCR states that the Department of Justice is responsible for determining whether to appeal the district court’s decision, but they confirm that the decision was effective immediately and that the Biden administration’s rule is no longer in effect in any jurisdiction.

    In addition to the court decision, the letter also points to Trump’s executive order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The letter restates from the executive order that all federal agencies are directed to “‘enforce all sex-protective laws to promote [the] reality’ that there are ‘two sexes, male and female,’ and that ‘[t]hese sexes are not changeable and are grounded in fundamental and incontrovertible reality.’” As such, the letter states that OCR must enforce Title IX consistent with the executive order.

    Finally, the letter orders all open Title IX investigations initiated under the Biden administration’s Title IX rule to “be immediately reoriented to comport fully with the requirements of the 2020 Title IX rule.” It also directs institutions to a Title IX resource page on the Department of Education’s website, which includes resources that provide an overview of the changing Title IX landscape over the past couple of years.

    CUPA-HR is hosting a webinar on Title IX and Title IV enforcement at OCR on February 25 at 1 p.m. ET. The webinar is free to attend but registration is limited. A recording of the webinar will be available after the live event. CUPA-HR will continue to monitor for new developments related to Title IX enforcement under the new Trump administration.



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  • Trump Signs Executive Order on Combating Antisemitism on Campus

    Trump Signs Executive Order on Combating Antisemitism on Campus

    by CUPA-HR | February 5, 2025

    On January 29, President Trump signed an executive order titled “Additional Measures to Combat Anti-Semitism.” The order directs certain federal agencies to use appropriate legal tools to “prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”

    Background

    The new EO directly connects to and expands upon Trump’s EO 13899, “Combating Anti-Semitism,” that was signed in December 2019. The 2019 EO tasks federal departments and agencies charged with enforcing Title VI of the Civil Rights Act to use the law to investigate potential cases of discrimination against Jewish individuals where such action does not run contrary to rights protected under other federal laws.

    The Biden administration did not rescind EO 13899, and they pursued regulations at the Department of Education to amend Title VI for cases involving discrimination based on shared ancestry or ethnic characteristics. The proposed rule, which was not published during the Biden administration but was most recently included in the Fall 2024 Regulatory Agenda, indicated that the regulations were in part in response to EO 13899.

    2025 Executive Order

    The new EO states that it reaffirms EO 13899 and “directs additional measures to advance the policy thereof in the wake of the Hamas terrorist attacks of October 7, 2023.” It takes direct aim at institutions of higher education, stating that the attacks resulted in “an unprecedented wave of vile anti-Semitic discrimination, vandalism, and violence … especially in our schools and on our campuses.”

    In response to these claims, the EO directs all federal agencies to submit a report within 60 days of the order that identifies “all civil and criminal authorities or actions within the jurisdiction of that agency, beyond those already implemented under Executive Order 13899, that might be used to curb or combat anti-Semitism.” Notably, the order directs these agency reports to include “an inventory and analysis of all pending administrative complaints … against or involving institutions of higher education alleging civil rights violations related to or arising from post-October 7, 2023, campus anti-Semitism.”

    The EO provides additional requirements for the reports submitted by the U.S. attorney general and the secretary of education. Specifically, the order directs the attorney general’s report to include “an inventory and analysis of all court cases against or involving institutions of higher education alleging civil rights violations related to or arising from” antisemitism that potentially occurred after the October 2023 attacks. The attorney general is also required to indicate whether they intend to or have taken any action with respect to the cases at institutions of higher education. Moreover, the secretary of education is tasked with submitting additional inventory and analysis of Title VI complaints related to antisemitism that were filed to the Office for Civil Rights after the October 7 attacks.

    Finally, the EO directs the secretaries of state, education and homeland security to report recommendations to familiarize “institutions of higher education with the grounds for inadmissibility under 8 U.S.C. 1182(a)(3) so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds” and to ensure “that such reports about aliens lead, as appropriate and consistent with applicable law, to investigations and, if warranted, actions to remove such aliens.”

    Next Steps

    As explained above, the EO directs agencies to promulgate reports for the president within the next 60 days. Additional information and guidance are needed from relevant agencies to determine next steps for institutions of higher education. CUPA-HR will keep members apprised of additional updates related to Title VI enforcement and public policy related to antisemitism on campus.



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  • Recent Executive Orders and Higher Ed HR’s Role in Creating and Sustaining an Inclusive Campus Community

    Recent Executive Orders and Higher Ed HR’s Role in Creating and Sustaining an Inclusive Campus Community

    by Andy Brantley | January 30, 2025

    In the wake of the recent Executive Orders on DEI, gender identity and immigration, higher ed institutions, like so many other organizations, are assessing the impacts and formulating next steps.

    Amid the inevitable changes that lie ahead, it’s important to remember that the role of HR in creating and sustaining a higher ed workplace that provides access and opportunity for all employees hasn’t changed. The programs, policies, processes and language we use to support this work may need to evolve, but the work and the institutional values it supports remain the same.

    We can still:

    • Promote equitable work and career pathing opportunities and pay for all employees.
    • Cultivate inclusive learning and working communities.
    • Create a workplace culture that embraces respect and civil discourse.
    • Level the playing field for everyone by working to remove bias, reviewing outdated policies, and creating transparency.
    • Reinforce institutional values by ensuring that all employees feel connected and supported.

    However, as we review and evaluate the work we’re doing, we have the opportunity to do so with fresh eyes, reframing it in ways that are both purpose-driven and inclusive. For example:

    • Communities of people with diverse backgrounds and life experiences create opportunities for community members to grow, both personally and professionally. To support a diverse workforce, institutions must explore ways to generate a more diverse applicant pool.
    • Access, opportunity and equitable pay for all employees promote job satisfaction, recruitment and retention. To support access and opportunity, institutions must identify and remove roadblocks to opportunity. To support equity in pay, institutions must ensure their compensation structures support these efforts.
    • A safe and welcoming work environment fosters community and collaboration. To create a work environment that’s welcoming and psychologically safe, institutions must ensure that systems, policies and processes are free from discriminatory practices.

    If you have resources or ideas to share with other CUPA-HR members regarding ways that you and your HR colleagues are refining your approach to creating and sustaining an inclusive campus community, please email them to [email protected]. Your submission will be treated as confidential and, if shared, will be described in terms that will not identify your institution.

    You’re Not Alone

    We know that HR leaders are often caught in the middle as different groups of employees and administrators express strong opinions and feelings regarding changes we must implement. In the coming weeks, CUPA-HR will share guidance and support to help you make changes to programs, policies and procedures and communicate these changes to the campus community.

    We are also hosting webinars focused on the recent Executive Orders, as well as the rollback of the Title IX regulations. And we’ll continue to keep you informed about future Executive Orders and legislation, as well as potential actions we should take as higher education HR leaders.

    The higher ed HR community has proved time and again how strong and resilient it is. Thanks for all the ways you lead and support your organizations, your employees and your CUPA-HR community.



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  • Trump Signs Executive Order on Enforcement of Immigration Laws, Potentially Leading to Increased Worksite Enforcement Action

    Trump Signs Executive Order on Enforcement of Immigration Laws, Potentially Leading to Increased Worksite Enforcement Action

    by CUPA-HR | January 29, 2025

    Along with several immigration-related executive orders and actions issued on Inauguration Day, President Trump signed an executive order titled “Protecting the American People Against Invasion.” The EO sets several directives for U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to enforce immigration law against immigrants without permanent legal status in the U.S. and could implicate employers the government deems as “facilitating” the presence of such individuals.

    Sections 4 and 5 of the EO establish civil and criminal enforcement priorities for relevant federal agencies. Specifically, the EO directs the secretary of Homeland Security to enable ICE and USCIS to set priorities for their agencies that would ensure successful enforcement of final orders of removal. Additionally, Section 8 of the EO directs increased enforcement action in the form of civil fines and penalties. The EO directs the secretary of Homeland Security to ensure assessment and collection of all fines and penalties from individuals unlawfully present in the U.S. and, notably, those who facilitate such individuals’ presence in the U.S.

    Depending on how the agencies respond to this order, these three sections of the EO could lead to an uptick in worksite enforcement action. As a result of this EO, agencies could take increased enforcement action for employment-related immigration law, which could lead to agency actions such as Form I-9 audits and potential investigations and worksite visits related to immigration compliance. Employers who are not in compliance with federal immigration laws could be considered as entities that potentially “facilitate” the presence of immigrants without permanent legal status, which could lead to significant fines and other penalties for the employers.

    Next Steps for HR Leaders

    CUPA-HR has always worked to help you ensure that your institution’s Form I-9 processes are in compliance with federal requirements, and we’ve partnered with USCIS for many years to provide periodic guidance, support and resources. We also understand that it is sometimes a challenge to ensure total compliance for large, sprawling campuses and that some of you have employees at worksites across your state, the country and the globe. Through speeches and actions like this executive order, the Trump administration has made it clear that they intend to focus enforcement efforts on immigrants without permanent legal status and businesses employing them. As noted above, it is possible that there could be I-9 audits and site visits to ensure compliance. Penalties for noncompliance could include very large fines and loss of federal funding.

    In light of this EO, it is vital for institutions to review their compliance with immigration laws regarding employment eligibility and work authorization. There are several questions HR leaders should ask themselves when reviewing compliance:

    • If you were notified tomorrow that your institution’s Form I-9 records were going to be audited in the coming weeks, where would your institution be most vulnerable?
    • What actions do you need to take today to address any potential vulnerabilities?
    • Do your presidents, provosts and other campus leaders understand and appreciate the magnitude of this potential challenge?
    • What changes do you need to make to your institution’s hiring and onboarding practices now to ensure compliance moving forward?

    CUPA-HR will continue to monitor for any additional updates related to the Form I-9 and other hiring processes related to work authorization. If you need additional guidance or resources, please review the CUPA-HR I-9/E-Verify Toolkit.



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