Category: sex harassment

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

    HR and the Courts — March 2023 – CUPA-HR

    by CUPA-HR | March 15, 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.

    Court of Appeals May Narrow LBGTQ Rights Under Title VII

    The 5th U.S. Circuit Court of Appeals (covering Texas, Louisiana and Mississippi) recently heard oral argument over a U.S. District Court judge’s ruling that private businesses may assert a religious exemption to bias claims brought by LBGTQ workers under federal anti-discrimination statutes. The trial court had granted summary judgment that religious employers objecting to dress codes, bathroom policies or hiring of LBGTQ employees are protected by the First Amendment (Braidwood Management v. EEOC (5th Cir. No 22-10145, oral ARG 2/7/23).

    If the trial court decision is upheld, it would blunt the reach of the recent Supreme Court decision in Bostock v. Clayton County, which held that LBGTQ workers can sue employers for job discrimination under Title VII based on gender identity or sexual orientation. The plaintiffs in the case are a Texas based healthcare provider and a Church. We will follow developments in this case.  

    Qualifying Temporary Workers Granted Pay-Parity Rights Equal to Full-Time Employees Under New Jersey State Statute

    New Jersey-based employers will have to grant certain temporary employees hired in the state pay and benefits equal to what the employer pays full-time direct-hire employees. The new law, recently signed by the governor (effective 180 days after the 2/7/23 signing), creates a “bill of rights” for many temporary employees and applies to specific New Jersey employers. The law applies only to the manufacturing, warehousing and logistics, food service, construction, building security and maintenance, cleaning, and landscaping industries. The statute does not cover healthcare workers, business and finance professionals, salespeople, and information security and technology staff. The statute does apply to temporary staffing agencies.

    New Jersey is joining California, Illinois and Massachusetts in adopting a statute protecting temporary employees. However, the New Jersey statute goes a step further than the other states in requiring pay and benefits equivalent to similarly situated full time employees in the industries and areas described above.   

    Offensive Music in Workplace Brings Sex Harassment/Hostile Environment Litigation  

    Bloomberg reports multiple filings of sex harassment, hostile work environment lawsuits based on claims that offensive music being played in the workplace creates a sexually hostile work environment. The multiple litigation filings involve manufacturing and warehouse employees. The employees are complaining that obscene and misogynistic rap music was continually played in the workplace over the objection of the complaining employees. The complaints allege that managers and other employees regularly played vulgar music and ignored the complaints and objections of offended employees. The allegations state that allowing the music to continue created a sexually hostile work environment, which is actionable under Title VII.

    Employers can avoid such litigation by establishing and enforcing policies that forbid sexually or racially offensive content in the workplace.  

    Tenured Public School Teacher’s Termination for Unprofessional Social Media Posts Reversed — Court Holds Tenure Entitled Her to a Warning and Opportunity to Remedy 

    A tenured Illinois public school history teacher who was terminated after posting publicly available “unprofessional” and “disrespectful” social media posts had her termination reversed by an Illinois appellate court. The termination had been affirmed by the trial court. The teacher claimed not to realize that her posts were public as opposed to being distributed only to “friends” on Facebook.

    Among other posts, the teacher shared a Facebook post from a group called Bored Teachers which stated, “I can think of no better form of birth control than to have people observe my class for a day.” In another post she described a student’s parents as “clearly crazy” and “nuts.” The teacher was terminated for making unprofessional remarks about students on Facebook. The head of HR testified that the plaintiff was not remorseful and thought the posts were therapeutic.

    The Illinois appellate court concluded that the plaintiff’s posts were “clearly foolish” and “unprofessional.” Nonetheless the appellate court concluded that the Illinois state statute afforded tenured teachers the right to warning and a chance to remedy their transgressions (Kelleher v. Illinois State Board of Education (Ill App. Ct. 1st Dist. No. 1-22-0058, Order 2/14/23)). 

    EEOC Commissioner Charges at Record High 

    EEOC commissioner charges for fiscal 2022 jumped to a record high of 22, up from just 3 in the previous year and the highest number since records have been kept on annual commissioner charges. A commissioner charge is one filed by an EEOC commissioner raising a potential legal issue. The vast majority of EEOC charges are filed by alleged victims.

    Commentators point out that the commissioner charge increase is likely due to a partisan block of action at the EEOC. Under the Biden administration, the EEOC had a Democrat chair and a Republican majority of members (three Republicans, two Democrats) until November 2022. Currently, the commission has a Democrat chair and a vacant seat, leaving it with two Democrat members and two Republican members. The filling of the open commission seat is still on hold due to blockage of the nomination process in Congress. 

    OFCCP Rescinds Trump Administration Religious Carve-Out Allowing Federal Contractors to Ignore Anti-Discrimination Obligations Based on Faith 

    The OFCCP announced new regulations on February 28, 2023, rescinding the Trump administration regulations allowing government contractors to ignore certain anti-discrimination obligations based on their faith. The new regulations bring back the prior standard, which had been in place for nearly two decades, and do not allow the defense. The new regulations will be published shortly and effective 30 days after publication. The Trump administration rule, which will be revoked, faced continued opposition from civil rights groups and LBGTQ advocates. This rule applies to the OFCCP enforcement of antidiscrimination rules under Executive Order 11246, applicable to all federal government contractors. 

     



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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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