Category: sex discrimination

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

    HR and the Courts — February 2024 – CUPA-HR

    by CUPA-HR | February 14, 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.

    Basketball Players Are Employees of Dartmouth, NLRB Concludes—Union Vote Scheduled for March 5

    Student-athletes on the Dartmouth College men’s basketball team will vote March 5 on whether to join a union in an election supervised by the National Labor Relations Board. The applicable NLRB regional director issued a decision on February 5, holding that the basketball players are employees of Dartmouth, as the institution provides compensation to the athletes and exerts control over them (NLRB Reg’l Dir., No. 01-RC-325633, 2/5/24, 2/9/24).

    The basketball players filed a petition to be represented by the Service Employees International Union, Local 560, in September. Dartmouth has indicated that it will appeal the regional director’s decision to the full NLRB after the March 5 election.

    The regional director decided that the basketball players meet the definition of employees under the National Labor Relations Act because “Dartmouth has the right to control the work performed by the Dartmouth men’s basketball team.” The regional director further held that the athletes receive compensation in the form of equipment totaling nearly $3,000 an athlete per season, tickets to events, and travel and lodging from the institution.

    This is the first time that the NLRB has ruled that student-athletes are employees under the NLRA. In 2014, the NLRB declined to take jurisdiction over Northwestern University football players in denying an election in that case. The regional director in the Dartmouth case concluded that nothing in the Northwestern case precluded a later decision that student-athletes are employees under the NLRA.

    This issue is also being litigated by the NLRB on the West Coast in unfair labor practice proceedings alleging that student-athlete basketball and football players have been improperly classified as students and not employees of the University of Southern California, the NCAA and the PAC-12 Conference.

    SpaceX Challenges Constitutionality of NLRA

    SpaceX filed a formal complaint in federal district court in response to a complaint the NLRB issued. The NLRB’s complaint concerned SpaceX firing eight employees over a letter they filed within the company’s internal distribution network. The letter called into question SpaceX CEO Elon Musk’s public comments and called for the organization to distance itself from Musk. The employees were fired, and the NLRB issued a complaint alleging that they were fired in violation of the NLRA as a result of engaging in concerted activities protected by the NLRA.

    SpaceX alleges that the NLRA is unconstitutional because it violates the separation of powers and deprives the employer the right to a jury trial (Space Exploration Technologies v. NLRB et al (Case No. 1:24:00001 S.D. Tx. 1/4/24)). The lawsuit specifically alleges that the NLRB’s structure of requiring complaints to be heard and initially adjudicated by administrative law judges, with appeal rights to the NLRB and eventually to the U.S. Court of Appeals, deprives employers their right to a jury trial. SpaceX alleges that the NLRB’s administrative structure violates its Sixth Amendment right to a jury trial on criminal matters.

    NLRB Seeks to Bring More Higher Ed Religious Institutions Under Its Jurisdiction

    In a recent hearing over a case primarily involving whether the NLRB should have jurisdiction over student-athletes, the NLRB attorneys also asked the administrative law judge (ALJ) to reverse the Trump-era, 2020 decision in the Bethany College case, which broadly exempted religiously affiliated, non-profit, higher ed institutions that hold themselves out publicly as religious institutions.

    The NLRB attorneys argued that the Bethany case was wrongfully decided and that the ALJ should return to the NLRB’s prior rule laid down in the Pacific Lutheran case. Under the Pacific Lutheran decision, religious higher ed institutions are exempt from NLRB jurisdiction only if the faculty members perform religious functions in addition to lay teaching responsibilities.

    Appeals Court Revives Professor’s Claim That Termination Violated His Contract Without Due Process

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) reversed a lower court’s dismissal of a tenured biology professor’s contract violation claim stemming from his termination. The appeals court ruled that the trial court erred in concluding that the Jackson State University professor’s claim was barred by the statute of limitations. The professor was terminated for alleged unauthorized research, which stemmed from his use of unauthorized undergraduate students to assist in his research involving the use of human urine.

    The professor was suspended in 2015. The department chair concluded in mid-2015 that he would recommend the professor’s termination based on the reports he heard. In 2018, the faculty personnel committee sided with the professor, but the university president rejected the committee’s reinstatement recommendation in 2018. In March 2019, the board of the Mississippi Institutions of Higher Learning (IHL) terminated the professor per the university president’s decision. The professor sued in 2022, and the trial court dismissed on three-year statute-of-limitations grounds. The appeals court reversed, holding that the IHL decision, which was the final termination decision, was when the statute of limitations would start running and therefore the lawsuit was filed within the three-year statute of limitations and can go forward.

    EEOC on Alert for Workplace Discrimination Resulting From Israel-Hamas War

    At her first press event as the Equal Employment Opportunity Commission’s new general counsel, Karla Gilbride indicated that the EEOC has received reports from workers and advocacy organizations representing the Jewish, Muslim and Arab communities of an increase in workplace discrimination against protected groups resulting from the Israel-Hamas war. The EEOC has signaled interest in pursuing domestic workplace discrimination that may result from “local, national or global events.” The general counsel indicated that it is a priority in the agency’s strategic enforcement plan to be responsive in this area.

    Gilbride concluded, “We’re reviewing that data to get a better handle on whether we at EEOC are recognizing an uptick in discrimination on the basis of religion or national origin affecting Jewish, Muslim and Arab communities or people who might be perceived as belonging to those communities even if they did not actually belong to those communities.” The general counsel indicated that global events in the past, such as 9/11, have led to an increase in domestic workplace discrimination.

    Employee at University of Michigan at Dearborn Has First Amendment, Free Speech Right to Speak to Press

    The 6th Circuit U.S. Court of Appeals (covering Kentucky, Michigan, Ohio and Tennessee) rejected the University of Michigan at Dearborn’s defense of sovereign immunity and allowed a university employee’s claim of First Amendment speech retaliation to proceed (Ashford v. Univ of Michigan (6th Cir., No. 22-02057, 1/9/24)). The appeals court held that the employee’s speaking to the press about the university’s “mishandling” of a student’s sex harassment complaint against a professor was a matter of public concern. Further, this matter was not part of the employee’s job responsibilities or duties. The court held that the employee was speaking as a private citizen on a matter of public concern and is therefore allowing the employee’s request that his 10-day suspension be expunged to move forward.

    The employee is also requesting an injunction against the university barring future retaliation for speech he might engage in. According to the lawsuit, the plaintiff alleged that the local campus police mishandled a student’s sex harassment complaint. The plaintiff alleged that he raised his concerns internally with his supervisor and with campus security before speaking with the press. The employee also alleges that the newspaper came to him for comment and initiated the process, which led to his statement. The court reiterated that the plaintiff was not speaking to further his official duties but was speaking as a private citizen.

    Yale Professor Sues, Claiming Sex Discrimination Against Males

    A federal trial court recently ruled that a Yale University medical school professor’s claim of gender discrimination can proceed to trial. The claims of discrimination result from the university’s additional decision to remove the professor’s endowed chair designation, sometime subsequent to the university’s initial punishment for his sex harassment transgressions (Simons v. Yale University (2024 BL 15344, D. Conn., No. 3:19-cv-01547, 1/17/24)).

    The professor alleged that only men are subject to multiple punishments for the same infraction. The court ruled that losing an honorific title could be an adverse job action even if pay was not reduced in that action. The court concluded that the plaintiff had previously been punished in multiple ways concerning the incident, including losing his positions as chief of the section of cardiovascular medicine and director of the university’s cardiovascular research center.



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  • 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 — November 2023 – CUPA-HR

    HR and the Courts — November 2023 – CUPA-HR

    by CUPA-HR | November 8, 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.

    California Becomes First State to Mandate Workplace Violence Prevention Plans

    Under a new law, the first broad state law of its kind, most employers in California must now adopt workplace violence prevention plans by next summer. Before now, hospitals in California were the only group of employers required by state law to adopt workplace violence prevention plans. What specifically must be included in the plan is vague under the terms of the statute. The California Division of Occupational Safety and Health (Cal/OSHA) will be responsible for implementation of this statute and stated that it would adopt an appropriate workplace violence set of standards for employers.

    The law will require employers to establish written plans, employee training and tracking of violent acts. Plans must be specific for each workplace and tailored to meet the individual circumstances of each setting. Commentators are looking for further guidance from Cal/OSHA on the specific details that must be covered by employer plans.

    Mandatory Time Off for Reproductive Loss

    California and Illinois are leading the way in the adoption of state laws mandating that employers guarantee time off following a miscarriage or other reproductive loss to ensure leave for grieving. The laws guarantee employees up to five days of paid or unpaid leave following a reproductive loss including miscarriage and still birth, as well as failed adoption, invitro or surrogacy. Utah has adopted a similar policy for state employees, and several cities have adopted similar statutes. Some national employers already voluntarily include reproductive losses in time-off provisions for employees.

    NLRB Lowers the Bar to Prove Joint Employer Status — May Impact Student-Athlete Cases

    The National Labor Relations Board rescinded a Trump-era regulation requiring that an alleged joint employer must have “direct and immediate” control exercised over employees to prove joint employer status. Under the new standard, if an alleged joint employer indirectly controls job terms or conditions of employment, it is a joint employer subject to NLRB jurisdiction. This will have immediate application to the ongoing dispute as to whether the NCAA and athletic conferences are joint employers of student-athletes, as they exercise control over rules that student-athletes must adhere to.

    This also may affect the NLRB’s attempt to exert jurisdiction over student-athletes at public colleges and universities. While the NLRB has no jurisdiction over public entities, its general counsel is asserting jurisdiction over those student-athletes at public institutions based on the legal theory that the NCAA and/or the athletic conferences are joint employers.

    Student-Athlete Unionization Issue May Affect Smaller Institutions and Athletic Programs

    Two additional, separate NLRB cases are winding their way to a decision on whether student-athletes meet the definition of employee under the National Labor Relations Act and are therefore eligible to unionize. A West Coast case involves the NLRB issuing a complaint claiming that the University of Southern California, the NCAA, and the PAC-12 Conference are joint employers of student basketball and football players and have unlawfully refused to bargain with any union.

    An East Coast case involves a union petition filed by the Service Employees International Union to represent Dartmouth College basketball players. Dartmouth has argued that its basketball players are not employees under the NLRA, as they do not receive sports scholarships and the basketball program does not generate money for the institution.

    Commentators at Bloomberg have concluded that decisions allowing unionization of college athletes may have the most serious repercussions for smaller institutions and even small athletic programs that do not generate revenue at large institutions.

    Class Actions Proliferate Related to Washington State’s Pay Transparency Law  

    A series of 40 or so class actions filed against major employers in Washington state — including Adidas, Home Depot and Marriott — will test the reach of the new Washington state job ad and pay transparency law. The Washington state law, like similar statutes in California, Colorado and New York, requires employers to provide pay ranges and benefits information in job ads, with the aim of improving pay equity for women and employees of color.

    The Washington and California laws also provide plaintiff applicants with a private right to sue, with Washington’s statute incentivizing plaintiffs to sue. It grants plaintiffs an award of actual damages proven or $5000, whichever is greater, plus attorney fees upon proving a pay transparency violation.

    Former Women’s Basketball Coach Loses Sex Discrimination Lawsuit

    The former head women’s basketball coach at the University of Montana has lost the sex discrimination lawsuit she filed following her termination after a poor win-loss record and serious culture complaints made by players and parents, including players threatening to leave the university if she remained as coach. The court also granted a positive inference to the university’s stated rationale for termination under the “same actor” doctrine, where in this case the same athletic director that hired the plaintiff was the person who made the decision to fire the plaintiff (Schweyen v. Univ of Montana–Missoula (2023 BL 390525, D. Mont. 9.21-cv-00138, 10/31/23)).

    The prior coach had a compiled 38-year performance of winning 75% of her games, while the plaintiff had only one winning season in the four years she served as head coach. The court rejected the plaintiff’s attempt to compare herself to a men’s basketball coach who had lost team players to transfer, citing multiple federal cases that have rejected arguments that disparate treatment between men’s and women’s sports teams creates an inference of discriminatory animus under Title VII.



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  • HR and the Courts – January 2023 – CUPA-HR

    HR and the Courts – January 2023 – CUPA-HR

    by CUPA-HR | January 18, 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.

    Divided Court of Appeals Rules That Separating Bathrooms By Biological Sex Does Not Violate the Constitution or Title IX — Transgender Student’s Discrimination Claim Denied

    The full 11th U.S. Circuit Court of Appeals (covering Florida, Alabama and Georgia) recently held in a sharply divided 7 to 4 decision that separating school bathrooms by biological sex is constitutional and does not violate Title IX. The majority decision is subject to multiple dissents (Adams v. School Board of St. Johns County, Florida (11th Cir. No. 18-13592, 12/30/22)). The case involved a St. Johns County, Florida, school board, which restricted bathroom use by biological sex, not allowing students who identified with a sex different from their biological sex to use the bathroom of their choice.   

    The majority decision rejected the transgender plaintiff’s reliance on the Supreme Court decision in Bostock v. Clayton County, which held that under federal job discrimination law, sex discrimination includes bias based on gender identity or sexual orientation. The majority decision pointed out that a school setting “is not the workplace,” and Bostock expressly decided not to tackle the issue of sex-segregated locker rooms or bathrooms. The majority concluded that the U.S. has a long history of separating sexes when it comes to the use of public bathrooms, and such sex-based classifications have never necessarily violated the Equal Protection Clause. It is likely that other circuits may decide this issue differently, setting up an ultimate decision on this issue by the Supreme Court.  

    NLRB Expands Damage Remedies Against Employers Who Commit Unfair Labor Practices

    The National Labor Relations Board (NLRB), in a decision applicable to all private colleges and universities in America, recently ruled that it will award damages in addition to back pay and reinstatement to employees who are subject to unfair labor practices (Thryv Inc. (N.L.R.B. Case No. 20-CA-250250, 12/13/22)). The case was brought by the NLRB against Thryv Inc., a software and marketing company, which the NLRB alleged violated the National Labor Relations Act (NLRA) by laying off employees without first bargaining with the union.  

    The NLRB ruled 3 to 2 (with two Republican member dissenters) that its “make-whole” remedies for employees affected by unfair labor practices will include damages that are the “direct and foreseeable pecuniary harm” resulting from an employer’s unfair labor practice, in addition to back pay and reinstatement. For example, this would include out of pocket costs for medical payments that would have been covered by an employer’s health insurance had the employee continued to be employed but for the unlawful termination. 

    Firefighter Loses First Amendment Religious Objection to Being Photographed for ID and Accountability Card

    A Christian firefighter from Bourne, Massachusetts, lost his First Amendment religious claim against his fire department after he was disciplined (suspended for 24 hours and ineligible for pay increases for at least six months) for refusing to be photographed for his ID card and accountability tag that would be attached to his firefighting gear and used at fire scenes (Swartz v. Sylvester (2022 BL 416412, 1st Cir., No. 2101568, 11/21/22)). The firefighter claimed that his religious beliefs precluded him from engaging in acts of self-promotion and that the photos might be used for promotional purposes. 

    The fire chief’s directive came after he became aware that some firefighters had worn ties and others wore t-shirts for their ID and authentication tag photos. The fire chief issued a directive that all firefighters would sit for their photos wearing their dress uniform for consistency. The photos would also be used in a display at the firehouse, be submitted to the media when a firefighter died in the line of duty and might be submitted to the media following a firefighter’s promotion.  

    In rejecting the plaintiff’s claim, the court concluded that the directive was applied uniformly, without exception, was facially neutral and was rationally related to the legitimate government purpose of publicizing the fire department and promoting the integrity of governmental institutions. 

    NLRB General Counsel Concludes That the NCAA Violated the NLRA By Failing to Treat Student-Athlete Basketball and Football Players as Employees

    The NLRB general counsel has concluded that the NCAA is violating the NLRA by failing to treat student-athlete basketball and football players as employees. The decision could eventually lead to the ability of these student-athletes to form labor unions. Absent settlement of the case, the NLRB Los Angeles Regional Office will issue a complaint against the NCAA and likely the Pac-12 Conference and the University of Southern California for failure to treat these student-athletes as employees. The case was brought to the NLRB by the National College Players Association, an advocacy group seeking to organize student-athletes. The final decision as to whether student-athletes are employees rests with the full NLRB, which will eventually address this matter. 

    New York Temporarily Abandons Statute of Limitations on State Law Sex Harassment Claims

    New York state has temporally done away with the statute of limitations on sex abuse claims, giving adult victims of sex abuse one year to file a claim against employers and offenders seeking financial compensation. The Adult Survivors Act, which became effective November 24, 2022, gives victims of alleged sex abuse a one year period to file a claim in New York no matter when the alleged abuse occurred. The new statute is intended to fill the gap left by 2019 legislation, which expanded New York’s statute of limitations on sex abuse cases from one year to 20 years, but did not do so retroactively.  

    Jury Awards Former Softball Coach $800,000 in Damages for Emotional Pain and Mental Anguish in Sex Discrimination Case

    A federal court jury has awarded a former university baseball coach $800,000 in damages for alleged emotional pain and mental anguish in a sex discrimination case in which the former coach alleged she was paid less than male comparators and was suspended from her position because of her sex. She had been suspended from her position following parental complaints about her coaching style. She alleged that a male coach who was the subject of similar parental complaints was treated less severely. The court dismissed her complaint with regard to salary discrimination, but allowed her discriminatory suspension allegations to proceed to a jury trial. The $800,000 jury award is subject to the university’s Motion for Judgment, not on the verdict likely to be filed after a final award is formalized by the federal district court judge (Hall v. Alabama State University (M.D. Ala. No. 16-cv-00593, 12/19/22)).  

    The jury trial proceeded for two days, and the jury concluded that the plaintiff’s gender was a motivating factor in the decision to suspend her.   

    Boston College Trustees Sued in Class-Action Lawsuit Claiming ERISA Violations in Allegedly Allowing “Above Market” Administrative Fees to Be Paid to Investment Adviser Without Competitive Bidding

    A federal district court judge recently denied the motion for summary judgement filed by defendants and allowed a class-action lawsuit to proceed against the trustees at Boston College who were sued for allegedly allowing “above market” record-keeping fees and “excessive” investment-management fees, which plaintiff’s claimed were not properly monitored or assessed through a competitive bidding process. In ruling the motion a “close call,” the judge allowed the lawsuit to proceed to discovery into the institution’s and trustees’ conduct (Sellers v. Trustees of Boston College (2022 BL 461759, D. Mass. No. 1:22-cv-10912, 12/27/22)).

    The plaintiffs also challenged the alleged inadequate performance of certain plan investments. The retirement plans in question cover approximately 3,000 employees and contain over $1.1 billion in assets. In allowing the case to proceed, the judge concluded that the plaintiffs are alleging more than poor performance during a limited time. The plaintiffs are alleging that the institution and trustees were not aware of the historical imprudence of certain investments or recent published court decisions regarding questionable fees and investments in this area.  



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

    HR and the Courts – July 2022 – CUPA-HR

    by CUPA-HR | July 6, 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.

    Long Awaited Title IX Regulations Issued

    On Thursday, June 23 the Biden administration’s Department of Education issued its long anticipated new Title IX proposed regulations. The proposed regulations consist of a 700-page document published in the Federal Register and open for public comment for 60 days. The significant highlights of the proposed regulation include the expanding of the definition of sex harassment to include as prospective claimants those who allege discrimination or harassment based on sexual orientation, gender identity, pregnancy and any situation that creates a “hostile environment.”

    The proposed regulations throw out the Trump administration’s definition of sex harassment, which required the alleged sex harassment be “so severe and pervasive as to be objectively offensive,” and return to the pre-Trump era’s “severe and pervasive” standard, which is consider by most commentators to be a lower bar for future alleged sex harassment victims.

    The proposed regulations also expand jurisdiction over alleged sex harassment to include off-campus and out of the country matters, including study abroad situations. Finally, the proposed regulations also eliminate the requirement that investigations include cross examination of victims and in-person hearings. We will follow developments as these regulations ultimately wind their way to finalization. Learn more.

    Court of Appeals Rules That a Professor Has an Independent Right to Sue a University Under Title IX for an Alleged Gender-Biased Sex Harassment Allegation Which Led to His Denial of Tenure 

    The U.S. Court of Appeals for the 2nd Circuit (covering New York, Vermont and Connecticut) ruled that a professor has an “implied right” of action for alleged gender bias under Title IX concerning the conduct of a Title IX investigation into charges of sex harassment brought by a student. The 2nd Circuit joined a number of other circuit courts in holding that Title IX grant professors have a right to sue under similar alleged circumstances (Vengalatorre v. Cornell University (2nd Cir. No. 15-14, 6/2/22)).

    The professor alleged that the university’s procedures for investigating the allegations were “fundamentally flawed,” as the student’s allegations were time-barred under the university’s Title IX procedures. The university continued its investigation under the university’s “Romance Policy,” which took the investigation out of the hands of the Title IX coordinator and Title IX investigators. The investigation continued under the jurisdiction of a faculty committee, which the plaintiff alleged would not take action against allegedly false accusations because of “Twitter blow back.” The professor alleges that he was denied tenure as a result of a gender-biased investigation. The court ruled that the professor can proceed to trial over his allegations under Title IX.

    Transgender Sheriff’s Deputy Wins Title VII Lawsuit Over Denial of Coverage for Sex-Change Surgery but Loses ADA Claim Based on Gender Dysphoria

    A federal district judge in Georgia ruled in favor of  a sheriff’s deputy that she was improperly denied coverage for sex change and related genital surgery under the county’s health plan. The judge ruled that pursuant to the Supreme Court’s 2020 decision in the Bostock case that gender identity discrimination is prohibited by Title VII of the Civil Rights Act of 1964. The judge ruled that the exclusion for “sex change surgery” contained in the county’s insurance policy is facially discriminatory to transgender plan participants (Lang v. Houston County (2022 BL 191359  M.D. Ga. No. 5:19-cv-00392, 6/2/22)).

    The judge observed that it is undisputed that mastectomies are covered when they are medically necessary for cancer treatment but not when they are medically necessary for a sex change procedure. Similarly hormone replacement therapy is covered when medically necessary to treat menopause but not when medically necessary for a sex change. The judge concluded that this exclusion applies only to transgender participants and therefore violates Title VII.

    However, the judge dismissed plaintiff’s claims under the ADA. The Judge ruled that the ADA exclusion of “gender identity disorders” from coverage under the statute applies to plaintiff’s medical condition of “gender dysphoria.”

    University Subject to Gender-Based Discrimination Claim by Professor/Applicant for Position Never Filled

    The Court of  Appeals for the 6th Circuit recently over turned a trial court’s dismissal of a Title IX gender discrimination lawsuit filed by the top-ranked applicant for a position that was not filled. The plaintiff, a male, alleged gender discrimination against him by way of a plot to leave the leave the position he was ranked number one for unfilled, and then create two new, separate positions that were filled by female applicants. The trial court dismissed the case as “unripe” as the original position was never filled. The appeals court reversed, holding that an employer can commit hiring bias a number of ways, including cancelling a job opening in favor of creating a new position in which to hire employees of a different gender (Charlton-Perkins v. University of Cincinnati (2022 BL 292328, 6th Cir. No. 21-13840, 6/3/22)).

    The appeals court concluded that the alleged failure to hire the male plaintiff professor, despite the fact he was the number one applicant, is enough by itself to describe an adverse employment action and state an actionable discrimination claim for relief.

    North Carolina State Plan Covering Teacher and State Employees Ordered to Pay Employees’ Transgender Care

    The North Carolina Medical Plan for Teachers and State Employees’ exclusion of gender-confirmation coverage discriminates against transgender employees and their dependents on the basis of sex and transgender status in violation of the Constitution’s equal protection clause and Title VII, concludes the U.S. District Court for the Middle District of North Carolina (Kadel V. Falwell (M.D.N.C., No. 19-cv-272, 6/10/22)). The court observed that the plan distinguishes between medically necessary drugs that conform to the patients biological sex and medically necessary drugs that do not. A similar case is pending with the Arizona State Plan, which we recently reported on.



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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | April 13, 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.

    Court of Appeals to Decide Whether a Non-Citizen Applicant for U.S. College Soccer Coaching Position Is Covered Under U.S. Anti-Discrimination Laws 

    The U.S. Court of Appeals for the D.C. Circuit will review a federal trial court decision concluding that a non-citizen soccer coach applicant is not protected or covered by U.S. anti-discrimination statutes.

    The federal trial court dismissed the case against American University on summary judgement concluding that a non-citizen applicant living outside the United States is not protected under Title VII or the Civil Rights Act of 1866. The plaintiff has appealed to the D.C. Circuit claiming that he was discriminated against because of his race, ethnicity and national origin when he did not receive the position he applied for (Nahkid v. American University ( DC Cir. No. 21-cv-7107, 3/11/22)). The plaintiff was a citizen of Trinidad Tobago and was living in Lebanon when he applied for the position. The plaintiff is a graduate of American University and played on the soccer team when he was a student.

    Federal Court Jury Awards Professor $3 Million for Past and Future Emotional Distress, Pain and Suffering Resulting From Her Tenure Denial Based on Her Sex and Pregnancies

    A federal district court jury in west Texas awarded an assistant engineering professor more than $3 million in damages as a result of finding that the University of Texas At Austin denied her tenure because of her sex and pregnancies. The professor was awarded $1 million for past emotional pain and suffering, $2 million for future emotional pain and suffering and $50,000 for lost back pay and benefits (Nikolova v. University of Texas at Austin (W, Dist Tex. No. 1:19-cv-00877, jury verdict 3/14/22)). Motions may be filed to have the court reduce the jury’s damage verdict.

    Court of Appeals Dismisses Student Intern’s Title VII Discrimination Claims Due to No Employee/Employer Relationship

    The U.S. Court of Appeals for the Third circuit (covering Pennsylvania, New Jersey and Delaware) recently affirmed a trial court’s dismissal of a Temple University student intern’s race discrimination lawsuit against an opioid rehab facility, Prevention Point, where he was interning. The plaintiff was a student in Temple’s public health program and obtained the internship as part of the program to complete his degree. In an unpublished decision, the court of appeals concluded that the plaintiff did not have an employee/employer relationship with Prevention Point, so there was no Title VII jurisdiction (Payne v. Prevention Point Philadelphia (2022 BL 86265 Cir. No. 21-02173, unpublished, 3/15/22)).

    The court pointed to evidence that documented that the goals of the internship related to the plaintiff’s course work at Temple and that other documents supported the fact that university staff coordinated with the facility’s staff to manage the internship.

    New York State Court System Terminates 103 Unvaccinated Employees as Appeals Court Reinstates Presidential Vaccine Mandate Among Federal Workers

    New York state court administrators disclosed that they have terminated 103 employees for failure to adhere to the court system’s vaccine mandate. They also reported that another 12 employees have retired or resigned after they failed to comply with the court’s COVID-19 vaccine requirements. All unvaccinated employees were given a warning last month that they faced possible termination for not complying with the vaccine mandate. Forty-one people in that group did comply and were not among those terminated for non-compliance.

    Four judges also face further action for not complying as the court administrators do not have the power to terminate non-compliant judges. It appears that the court administrators will refer non-compliant judges to the judicial ethics independent watchdog for non-compliance and further potential action.

    Union officials representing the terminated employees continue to fight the terminations. Federal courts have ruled against attempts to block enforcement of the court administration’s vaccine mandate.

    Separately, the U.S. Court of Appeals for the Fifth Circuit reversed a Texas federal district court judge’s order, blocking the presidential requirement for federal civilian employees to be vaccinated. The court of appeals threw out the challenge to the presidential order, requiring over two million federal civilian employees to be vaccinated or face termination (Feds for Medical Freedom v. Joseph Biden (5th Cir. No. 22-40043, 4/7/22).

    States Beginning to Ban Employer Non-Disclosure Agreements

    The state of Washington recently became the latest state to restrict an employer’s ability to request or demand a non-disclosure agreement (NDA) as a condition of employment or as part of a settlement agreement in discrimination or other employment-related cases.

    The Washington state law takes effect on June 9, 2022. The law goes on step further than similar laws in California and New York, which ban NDAs. The Washington state law bans confidentiality agreements, in addition to NDAs, as part of workplace settlements related to allegations of illegal conduct.



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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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  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | November 17, 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 Appeals Court Panel Expresses Skepticism Regarding New York City Teachers’ Challenge to the Constitutionality of the New York City Vaccine Mandate for All Public School Teachers

    In a case which could have ramifications for public and private college and university vaccine mandates, a group of New York City teachers recently argued that the New York City mandate that all public school teachers have at least one vaccine shot violates their basic rights under the U.S. Constitution. The case was heard by the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont. The New York City mandate requires all teachers to have at least one vaccine shot in order to continue teaching or be suspended without pay. The mandate allows them to continue to receive benefits during the suspension, but bars them from teaching elsewhere (Maniscalco v. New York City Department of Education (2nd Cir: Argued Oct 14, 2021)). The case is one of dozens across the country contesting the validity of public and private employer vaccine mandates.

    The teachers’ counsel argued that teaching is a profession and the vaccine mandate takes away the fundamental right of teachers to teach. One of the federal appeals court judges commented during the argument that she was having difficulty understanding why the mandate was “irrational” as argued by the teachers’ counsel.

    Bipolar Teacher Loses Her Disability Discrimination Appeal Following Her Discharge for Violating the School District’s Rules on Sharing Religious Beliefs

    In a case having general applicability to the Americans With Disabilities Act termination claims and requests for accommodation brought in the higher education context, the U.S. Court of Appeals for the Sixth Circuit, covering Michigan, Ohio, Kentucky and Tennessee affirmed a school district’s decision to terminate a teacher for inappropriate communication with students during her paid suspension. The appeals court concluded that a reasonable jury could not conclude that the teacher’s misconduct caused her discharge, notwithstanding her diagnosis of suffering from bipolar disorder (Lockhart v. Marietta City Schools (6th Cir., No. 20-4308, 10/15/21)).

    The plaintiff was put on paid leave after telling her students that she had a deeply religious experience while shoveling snow in which she lost consciousness, was carried away and now God was speaking through her. She was instructed not to communicate with students while on paid leave. She violated the instruction and sent a student a 12-page letter telling them not to trust school administrators and to “Trust me, I am the one you need to trust. I dearly love you, have they told you they love you?”

    The teacher argued that the school district should have accommodated her disability rather than terminate her. The court concluded that the school district was not required to excuse her misconduct during leave and that she repeatedly violated the terms of her administrative leave before even remotely asking for an accommodation request.

    Some States May Alter, Change and/or Challenge OSHA’s New Vaccine Rules

    Some states, through their respective attorney generals, have signaled that they may contest of try to alter the Occupational Safety and Health Administration (OSHA)’s vaccine mandate. OSHA allows by agreement some 26 states plus Puerto Rico and the U.S. Virgin Islands to adopt their own workplace safety rules. Those states include seven states with Republican attorney generals who have taken the position that a vaccine mandate is “disastrous and counterproductive.” The attorney generals of Alaska, Arizona, Indiana, Kentucky, South Carolina, Utah and Wyoming have written letters to OSHA stating that such a vaccine mandate does not meet the “grave danger” threshold needed to justify such an Emergency Temporary Standard. An additional two states, Texas and Arkansas, have taken steps to avoid a potential OSHA vaccination rule. Numerous challenges have been filed in federal court.

    The cases challenging the new OSHA rules will be consolidated for one federal appeals court to rule on. Ultimately, the Supreme Court may step in.

    Student Workers at Private University Seek Union Formation and Bargaining Rights Under the National Labor Relations Act

    Recently, a student worker organizing committee at Kenyon College filed a petition with the National Labor Relations Board (NLRB) to represent 600 student employees at the Ohio college. The committee is asking the NLRB to conduct a union representation election for the proposed student worker bargaining unit. The current NLRB has apparently abandoned its position to limit union organizing among student workers at private colleges and universities over which the NLRB has jurisdiction.

    In March 2021, the then Republican-controlled NLRB abandoned a proposal to block student workers at private colleges and universities form organizing. The NLRB’s current Biden administration appointed general counsel has since publicly backed expanding labor rights for student workers.

    Sex Harassment Case for Employee Perceived as Gay Is Headed to Trial Based on Alleged Physical Attacks and Discrimination for Failure to Conform to Sexual Stereotypes

    A heterosexual employee who was mistakenly perceived as gay and harassed by a supervisor because of the misperception received the right to proceed to a trial over his sex harassment claim. The trial court cited the Supreme Court decision in Bostock v. Clayton County and following decisions which have interpreted Title VII to protect against discrimination based on sexual orientation, gender identity, and/or failure to conform to sexual stereotypes (Roberts v. Glenn Industrial Group ( 2021 BL 404870. W.D.N.C. No.3:17- cv-00747, 10/21/21)).

    The plaintiff complained and the court agreed that the alleged harassment — if proven — was severe and pervasive and included physical assault by his supervisor in which his safety glasses were knocked off and he was put in a choke hold by his supervisor.



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