Category: Title IX

  • Fall 2022 Regulatory Agenda Targets Release Dates for DOL’s Overtime Proposal and Final Title IX Rule – CUPA-HR

    Fall 2022 Regulatory Agenda Targets Release Dates for DOL’s Overtime Proposal and Final Title IX Rule – CUPA-HR

    by CUPA-HR | January 10, 2023

    On January 4, 2023, the Biden administration released the anticipated Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with a detailed glimpse into the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. Agendas are generally released in the fall and spring and set target dates for each agency and sub-agency’s regulatory actions for the coming year.

    After completing a thorough review of the items included in the Regulatory Agenda, CUPA-HR put together the following list of significant proposed actions for members.

    Department of Labor

    Wage and Hour Division — Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees

    According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) is now planning to release a Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements in May 2023. The WHD first announced their intention to move forward with the NPRM in the Fall 2021 Regulatory Agenda, stating its goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    As a refresher, changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, the DOL issued a new final rule in September 2019 raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020 and remains in effect today.

    Since the regulation’s reintroduction in the Fall 2021 Regulatory Agenda, CUPA-HR has participated in several DOL listening sessions and has sent letters to the DOL expressing concerns with the timing of the rulemaking. Specifically, our concerns highlight the ongoing challenges of the COVID-19 pandemic and the continued reliance on hybrid and remote work, a historically tight labor market in the U.S. and the effects of inflation on the workforce.

    Wage and Hour Division — Employee or Independent Contractor Classification Under the Fair Labor Standards Act

    In May 2023, the WHD anticipates issuing a final rule to amend the current method for determining independent contractor status for workers.

    On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. The current test finalized by the Trump administration in 2021 has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:

    • the extent to which the work is integral to the employer’s business;
    • the worker’s opportunity for profit or loss depending on managerial skill;
    • the investments made by the worker and the employer;
    • the worker’s use of skill and initiative;
    • the permanency of the work relationship; and
    • the degree of control exercised or retained by the employer control.

    Employment and Training Administration — Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States 

    In September 2023, the DOL’s Employment and Training Administration (ETA) plans to issue an NPRM to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.” The proposal will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers.”

    CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

    National Labor Relations Board

    Joint Employer

    In August 2023, the National Labor Relations Board (NLRB) plans to release its anticipated final rule to amend “the standard for determining whether two employers, as defined under the National Labor Relations Act (NLRA), are a joint employer under the NLRA.”

    On September 7, 2022, the NLRB issued an NPRM on the joint employer standard. The NPRM establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision and assignment and work rules. According to the NLRB’s press release, the Board “proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”

    Department of Education

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance 

    In May 2023, the Department of Education’s Office for Civil Rights (OCR) plans to release its highly anticipated Title IX final rule. The rulemaking would finalize the June 2022 NPRM to rollback and replace the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity and pregnancy or related conditions.

    CUPA-HR filed comments in September 2022 in response to the NPRM. In our comments, we tried to bring attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination. The Department of Education received over 200,000 comments in response to the NPRM, which they must review prior to issuing a final rule to implement their changes.

    In addition to the Title IX rulemaking, the OCR also announced its intention to issue an NPRM to address Title IX protections as it relates to athletics programs at educational institutions. The Department of Education announced its intention to pursue a separate rulemaking to address transgender students participation in athletic programs at institutions of higher education and such protections afforded to them under Title IX after the topic was frequently discussed in the media and in Congress in 2022. According to the Regulatory Agenda, the NPRM was set to be released in December 2022, but it has not yet been released.

    Department of Homeland Security

    U.S. Immigration and Customs Enforcement — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9) 

    According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in May 2023 that would finalize the agency’s proposed rule aiming to “revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

    On August 18, 2022, the DHS published its NPRM on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. If finalized, the proposed rulemaking would create a framework under which the Secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax, or email rather than directly allowing employers and agents to use such alternative examination options. According to the NPRM, the Secretary would be authorized to implement the alternative examination options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services, or a national emergency declared by the President.

    CUPA-HR filed comments in response to the DHS NPRM in October 2022. The comments were supportive of the Department moving forward with the NPRM, but cautioned against requiring secondary, in-person review of I-9 documents after virtual inspection and once an employee is in-person on a regular and consistent basis; issuing training for document detection and/or anti-discrimination training that may be offered at a high cost without proper vetting, and requiring institutions to be enrolled in E-Verify to participate in the alternative options.

    U.S. Citizenship and Immigration Services — Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    In October 2023, the DHS’s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system, and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

    Department of Agriculture

    Agriculture Acquisition Regulation: Internal Policy and Procedural Updates and Technical Changes

    In May 2023, the Department of Agriculture (USDA) plans to re-propose an NPRM that was previously issued in February 2022 and included controversial provisions that would require federal contractors on projects procured by the agency to certify their compliance with dozens of federal and state labor laws and executive orders.

    In the February NPRM, the USDA provided only 32 days for stakeholder comment submissions on the proposal. CUPA-HR filed an extension request with the department asking for an additional 90 days to “evaluate the NPRM’s impact on [members’] research missions and collect the information needed in order to provide thoughtful and accurate input to the USDA,” as well as official comments that were pulled from 2012 comments CUPA-HR submitted with the Society for Human Resource Management (SHRM).

    While it is unclear whether the May NPRM will include the blacklisting language again, the abstract of the re-proposal states that “the new proposed rule would be responsive to the comments received on our February 2022 proposal.”



    Source link

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

    HR and the Courts – October 2022 – CUPA-HR

    by CUPA-HR | October 4, 2022

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

    University’s Internal Investigation of Pay Equity Claims Protected By Attorney-Client Privilege — EEOC Fails In Attempt to Require Disclosure of Documents 

    A federal district court judge recently rejected the Equal Employment Opportunity Commission (EEOC)’s demand that a university turn over 54 documents related to an internal investigation the university conducted by inside and outside counsel concerning pay equity claims made by an athletic department employee who claimed she was paid approximately $37,000 less annually than a similarly situated male employee. The court rejected the EEOC’s argument that the investigation was conducted by the institution’s EEO office and did not involve seeking legal advice (Equal Employment Opportunity Commission v. George Washington University (2022 BL 308648, D.D.C., No. 1:17-cv-01978. 9/1/22)). The court ruled that the investigation and all related documents are protected by the attorney-client privilege.

    The court concluded that the university did not waive privilege by asserting good faith compliance with federal law as a defense to the EEOC’s claim for punitive damages. The court added that the university does not intend to use the documents in question in proving the good faith defense.

    Failure to Renew a Coach’s Discretionary Contract May Be an Actionable Adverse Employment Action Subject to a Title IX Retaliatory Termination Claim

    The Ninth Circuit Court of Appeals (covering California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii) recently ruled that failure to renew a golf coach’s contract may be an adverse employment action subject to a Title IX retaliation claim (Macintyre v. Carroll College (9th Cir., No. 21- 35642, 9/8/22)). The plaintiff was hired as an assistant golf coach in 2006, promoted to head golf coach in 2007 and appointed associate athletic director in 2013. His contract was subject to renewal at the discretion of the college.

    The plaintiff became aware of what he thought was an improper disparity in the amount the college spent on men’s versus women’s athletic programs. He concluded that the college was out of compliance with applicable Title IX mandates. He alleges that after raising these issues with the interim athletic director and the Title IX coordinator he received negative performance reviews for the first time. He filed a grievance alleging discrimination. In settling the matter, he was given a two-year contract to be head golf coach. At the end of the two-year period his contract was not renewed. His current action alleges that the non-renewal was in retaliation for his raising Title IX concerns.

    The court, in ruling that the case should go forward, concluded that this non-renewal might be an adverse employment action and might deter employees from reporting discrimination.

    California Appeals Court Rules That Remote Work Due to COVID-19 Can Broaden Where Employees May Sue for Job Bias

    A California appellate court recently ruled that the COVID-19 pandemic and technological advances have changed the way people work. The court went on to hold that the venue provisions of the California Fair Employment and Housing Act were meant to remove barriers for suing for job discrimination. Therefore, the “modern reality” of work means that an employee who was fired while on pregnancy leave at her home in Los Angeles County can sue there rather than in Orange County where the employer was located (Malloy v. Superior Court of Los Angeles County ( 2022 BL 330038 Cal. St. App 2nd Dist, 9/19/22)).

    The court concluded that allowing remote workers to sue where they worked or would have worked effectuates the purposes of the Act. The case involved a demand by the plaintiff’s employer that she return to the physical office after her pregnancy leave had ended. After the plaintiff was fired for not coming back to work, the plaintiff sued under the California statute for pregnancy and sex discrimination and sex harassment, interference with her family and medical leave rights, and retaliation for trying to exercise her family and medical leave rights. The plaintiff also included a claim for wrongful termination in violation of public policy.

    California Moves Toward Requiring Employers to Prove Impairment Before Terminating an Employee for Cannabis Use

    In another California development which may spread to other states, the governor signed a new law which goes into effect on January 1, 2024 that prohibits employers from discriminating against employees who use cannabis during off-duty hours. Commentators conclude that this gives California employers 15 months to develop an accurate test on whether an employee is impaired at the job after smoking marijuana or consuming cannabis-infused snacks before firing them or otherwise disciplining an employee for marijuana use. The dilemma is that scientists conclude that there is currently no accurate test that determines impairment form using marijuana or cannabis products.

    Cosmetology Students and School Both Win Partial Summary Judgement on Claims That Students Should Be Paid For Work Completed as Part of School-Supervised Job Training

    A federal court in Michigan ruled in favor on summary judgement on some of the claims brought by cosmetology students that they should be paid for work performed as part of their course obligations to engage in supervised on-the-job training. The cosmetology school also won partial summary judgement regarding some of the tasks for which the student made wage claims (Eberline v. Douglas J. Holdings, Inc. (2022 BL 332583, E.D. Mich. Partial Summary Judgement 9/22/22)).

    The court divided the student tasks for which pay was claimed into three categories, namely client services, janitorial tasks and retail sales. The court held that there was no genuine dispute of facts on who was the primary beneficiary of client services tasks, ruling that the students were the primary beneficiary in this area, therefore granting partial summary judgement to the school. Similarly, the court ruled that there was no genuine dispute of facts on who was the primary beneficiary of janitorial tasks, ruling that the school was the primary beneficiary, therefore granting partial summary judgement to the students. Finally, the court ruled that there is a genuine dispute of facts on who is the primary beneficiary of retail sales tasks, thus ruling that this area must be given to a jury to decide.



    Source link

  • CUPA-HR Submits Comments in Response to Title IX NPRM – CUPA-HR

    CUPA-HR Submits Comments in Response to Title IX NPRM – CUPA-HR

    by CUPA-HR | September 13, 2022

    On September 12, CUPA-HR submitted comments in response to the Department of Education (DOE)’s Notice of Proposed Rulemaking (NPRM) to amend Title IX. The NPRM seeks to rollback and replace the Trump administration’s 2020 Title IX rule, specifically with respect to its grievance procedures, and establish expanded protections against sex-based discrimination to cover sexual orientation, gender identity and pregnancy or related conditions.

    CUPA-HR filed comments to bring attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination. In our comments, we highlight the two sets of grievance procedures promulgated by the proposal: procedures used for cases involving employee-on-employee sex-based harassment (section 106.45) and procedures used for sex-based harassment involving an employee and student, regardless of whether the employee involved is the complainant or respondent (section 106.46). Our comments argue that such procedures in cases where the employee is a respondent may be unnecessarily prescriptive and will interfere with existing obligations, policies and procedures already utilized by institutions that are required to handle such incidents of sex-based employment discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and state and local employment laws.

    In light of our concerns, our comments ask the DOE to exempt any sex-based harassment of employee respondents against a student complainant from the section 106.46 requirements, and to exempt all sex-based harassment claims where an employee is the respondent, regardless of whether the complainant is a student or an employee, from the section 106.45 requirements. These comments directly align with the concerns and requests written in the American Council on Education’s comments, which CUPA-HR also signed on to.

    Finally, our comments suggest that the DOE consult with other federal agencies with jurisdiction over discrimination law, including the Equal Employment Opportunity Commission to rationalize the requirements instituted by the Title IX regulations and Title VII, and to issue joint guidance on how to minimize potential conflicts between the obligations to claimants under Title VII and respondents under Title IX.

    The DOE received over 200,000 comments in response to the NPRM, which they must now review prior to issuing a final rule to implement their changes. It is therefore unclear when we can expect the final rule and effective date of the new regulations. CUPA-HR will keep members apprised of any updates on the Title IX regulations.



    Source link

  • August Recess Roundup: Congressional and Regulatory Updates – CUPA-HR

    August Recess Roundup: Congressional and Regulatory Updates – CUPA-HR

    by CUPA-HR | August 22, 2022

    When August arrives, Congress leaves D.C. and heads to their home districts for the annual August recess period. To keep CUPA-HR members apprised of recent and future actions on the Hill and in federal agencies, here are highlights of the latest actions by Congress, nominations they’ll have to consider when they return, and regulations that may be issued throughout the month.

    Legislative Updates

    On August 16, President Biden signed the Inflation Reduction Act into law following its passage, along partisan lines, in both the U.S. Senate and House of Representatives. The Inflation Reduction Act, which is a slimmed down version of the reconciliation bill Democrats have been pushing for, focuses on policies to mitigate the impacts of climate change, reduce healthcare costs and increase tax revenue to reduce the federal budget deficit. This reconciliation bill was narrowed down from the “Build Back Better” agenda, a step necessary to gain support from Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) to get the bill over the 50-vote threshold. Notably, the final package did not include “Build Back Better” provisions like paid leave, universal community college and childcare.

    Additionally, on August 9, President Biden signed the CHIPS and Science Act, which provided new funding to boost U.S. investments in research and manufacturing of semiconductors. With respect to the research investments, the bill includes a five-year, $81 billion authorization of the National Science Foundation to go toward research funding. Additionally, the bill provides new funding to historically black colleges and universities and other minority-serving institutions, and for STEM programs at colleges and universities.

    Nominations Awaiting Confirmation

    On July 27, President Biden announced Jessica Looman as the new nominee for the Department of Labor (DOL)’s Wage and Hour Division Administrator. Looman has been serving as acting administrator for the agency since June 2021. Her nomination replaces Biden’s previously withdrawn nomination of David Weil, who failed to garner enough support in the Senate to be confirmed. Looman’s nomination will have to go through the Senate Health, Education, Labor and Pensions (HELP) Committee prior to going to the Senate floor for a full vote. Timing on both votes are uncertain at this point.

    Additionally, Kalpana Kotagal’s nomination for the Equal Employment Opportunity Commission (EEOC) continues to be held up in the Senate. In May, the Senate HELP Committee deadlocked on a vote to move her nomination to the full Senate, which means the full Senate will have to vote to advance her nomination out of committee — a logistical hurdle in a 50-50 Senate with sparse time on their legislative calendar. The result of this hold up means the EEOC will continue to operate with a Republican majority as federal statute allows Republican Commissioner Janet Dhillon, whose term expired in July, to remain an active member of the EEOC while her successor’s nomination is pending. If and when nominee Kotagal is confirmed, she will replace Commissioner Dhillon and tip control of the EEOC to a 3-2 Democratic majority. Her confirmation vote is also uncertain at this point.

    Regulatory Updates

    Though not guaranteed, there may be several proposals and final regulations that may be released by the Department of Education, the DOL and other relevant agencies throughout the month. Some of these include the expected proposed rule on Form I-9 remote verification flexibilities from the Department of Homeland Security, which has already had its review completed by the White House; a proposed rule on independent contractor classification, which was sent to the White House for review in July; and a final rule on the Deferred Action for Childhood Arrivals program, which has a target release date set for August.

    In addition to these proposed and final rules CUPA-HR is waiting to be released, the Department of Education is still undergoing its notice-and-comment period for the Title IX proposed rule that was released in June. CUPA-HR is assessing the proposal and will put together comments in response to the proposed rule. Comments are due September 12.

    CUPA-HR will keep members apprised of legislative and regulatory actions as August recess continues and we move into the fall.



    Source link

  • 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.



    Source link

  • Department of Education Releases Title IX Proposed Rule – CUPA-HR

    Department of Education Releases Title IX Proposed Rule – CUPA-HR

    by CUPA-HR | June 23, 2022

    On June 23, the Department of Education released the highly anticipated Notice of Proposed Rulemaking (NPRM) to amend Title IX. The NPRM proposes to replace the Trump administration’s 2020 Title IX rule and establishes safeguards for transgender students by proposing a ban on “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.” The proposal will be open for public comment for 60 days following publication in the Federal Register.

    In March 2021, President Biden issued an Executive Order (EO) titled, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” The EO directed the secretary of education to evaluate the Trump administration’s Title IX regulations and to “issue new guidance as needed on the implementation of the rule.”

    Of significance, the NPRM proposes to repeal the Trump administration’s requirement for live hearings for Title IX investigations. It also proposes to change the definition of sexual harassment back to “unwelcome sex-based conduct” that creates a hostile environment sufficiently severe or pervasive that it denies or limits a person’s ability to participate in a school’s education program or activity.

    CUPA-HR will be conducting a deeper analysis of the 700-page proposal in the days and weeks to come and will be partnering with other higher education associations to ensure the department receives meaningful feedback on its proposal.

    For additional information on the proposed rule, the department has provided a summary of the major provisions and a fact sheet.



    Source link

  • Tools to Build a Harassment-Free Higher Ed Workplace – CUPA-HR

    Tools to Build a Harassment-Free Higher Ed Workplace – CUPA-HR

    by CUPA-HR | March 30, 2022

    Sexual violence is a multi-faceted and difficult topic. Higher ed institutions either enter the conversation before an event of sexual violence has occurred or after it has occurred, leaving the institution scrambling for answers to the campus community as to why it happened in the first place.

    As part of upcoming Sexual Assault Awareness Month (April), we’re highlighting some CUPA-HR resources that share first-hand experiences from some higher ed institutions and the strategies and trainings they’ve used to respond to and approach the topic of sexual violence on campus.

    Strategies to Create a Harassment-Free Workplace

    In an article in the spring 2020 issue of Higher Ed HR Magazine, UMass Lowell detailed how they addressed concerns about a sexual harassment complaint the university received several years prior that spurred anger among students, faculty and staff. Questions were raised as to how decisions were made following the violation, whether the sanctions were sufficiently severe and what steps were taken to mitigate risk of recurrence.

    In response, the chancellor convened a task force to review the university’s Title IX policies and procedures, educational efforts, culture and climate, and communications on these issues, and to make a set of recommendations to the executive cabinet for future improvements. Read the full article to learn about how the task force practiced transparency, built trust among the community and key themes that emerged in the recommendations from the task force: A Matter of Trust: Strategies for Creating a Harassment-Free Workplace

    Impactful, Engaging In-Person Sexual Harassment Training

    While training alone isn’t the answer to creating a harassment-free environment, it certainly should be part of an institution’s broader strategy. However, in order to make an impact, the training must be engaging, insightful, interactive and relatable — and sitting at a desk clicking through an online training module or watching a video about workplace harassment is anything but engaging. With an in-person training approach, participants can ask questions, engage one another in dialogue, and connect to the content, making the messaging more likely to stick.

    Explore the benefits of and barriers to in-person sexual harassment training, as well as examples of interactive in-person training activities in the article A Thoughtful Approach: How to Conduct Impactful, Engaging In-Person Sexual Harassment Training.

    Additional Sexual Harassment Resources

    CUPA-HR’s Title IX and Sexual Harassment Toolkit is a great place to check out what other institutions are doing to mitigate sexual harassment and misconduct. The toolkit highlights sexual harassment and reporting policies, trainings and other tools for HR pros.

    By tapping into these resources, higher ed institutions can positions themselves as those that prioritize prevention over reaction when it comes to sexual violence on campus.

    Related resources:

    How Institutions Are Leveraging Partnerships and Education to Address Sexual Harassment and As

    4 Ways to Mitigate Risk Related to Sexual Misconduct and Harassment on Campus

    Sexual Harassment Resources



    Source link

  • HR and the Courts – CUPA-HR

    HR and the Courts – CUPA-HR

    by CUPA-HR | February 9, 2022

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

    U.S. Supreme Court to Review Harvard and UNC Affirmative Action Admission Policies In Consolidated Case 

    The U.S. Supreme Court agreed to hear and review two cases challenging the affirmative action admissions policies at Harvard University and the University of North Carolina. The Supreme Court will hear an hour of argument over both court of appeals decisions, which have concluded that the respective affirmative action plans were legal. In the past, the Supreme Court has consistently ruled that college and university admission related affirmative action plans were legal since 1978 in the Bakke decision.

    The composition of the Supreme Court has changed significantly since the last time it ruled that affirmative action in college admissions was legal in 2018 in the University of Texas at Austin case. The argument will be heard in the October 2022 term with a decision likely to be made in 2023. CUPA-HR will follow and report on future developments.

    Court of Appeals Allows a Former Teaching Assistant’s Complaint Alleging Male Bias In Title IX Investigation to Proceed 

    The Ninth Circuit Court of Appeals (covering California, Oregon, Washington, Nevada, Idaho, Montana and Arizona) ruled that a former Chinese national teaching assistant — who lost his job and student visa to stay in the U.S. after a Title IX investigation found that he was in violation of the school’s dating guidelines — can proceed with his own Title IX suit against the university, alleging that the investigation was biased against him as a male (Doe v. University of California (9th Cir. No. 20-55831. 1/11/22)). The plaintiff, who had prevailed in a state court proceeding challenging the disciplinary decision, nonetheless lost his housing, job, student visa and the ability to complete his doctorate.

    The plaintiff had broken off his engagement to a student who he was dating after learning she had been unfaithful to him. She came unannounced to his office, confronted him and blocked his exit when he said he had to leave to teach a class. The plaintiff eventually got around the student to leave, but the student called the campus police claiming that he pushed her and grabbed her arm, and she filed a Title IX complaint. During the investigation, an investigator told the plaintiff, “No female had ever fabricated allegations against a former boyfriend in a Title IX setting.” The plaintiff also alleged that during the two-year time period, the overwhelming majority of Title IX claims were against males and that no female was ever given a two-year suspension in circumstances like his. The court of appeals concluded that given these facts, the plaintiff’s claims should proceed to trial.

    NLRB General Counsel Reiterates Call for NLRB to Issue Make-Whole Remedies, Including Emotional Distress Damages for Employer Unfair Labor Practice Violations

    Jennifer Abruzzo, the Biden administration appointee as general counsel to the National Labor Relations Board (NLRB), has reiterated her request that the NLRB expand its remedy policies for employer violations of the National Labor Relations Act’s unfair labor practice provisions, including discrimination against union members, to include “make-whole” remedies, which would include emotional distress damages. The general counsel announced her initial request in September 2021. Abruzzo followed up the September 2021 request in a legal brief filed with the NLRB on January 10, 2022 arguing that the NLRB remedies are “feeble” and allow employer’s to violate the Act because it is cheaper do so without facing the consequence of make-whole remedies.

    Current NLRB remedies are limited to employment reinstatement, back pay awards and posting of notices that the employer violated the Act. Business groups filed a brief on January 10, 2022, which also opposes the general counsel’s request, arguing that the NLRB lacks authority under the Act to impose make-whole remedies. CUPA-HR will follow this litigation and report the result in a future blog post.

    U.S. Supreme Court Will Hear Football Coach’s First Amendment Claim of Protected Mid-Field Prayer Denied By the Ninth Circuit Court of Appeals 

    The U.S. Supreme Court has granted certiorari (cert) and will hear an appeal of a Washington state football coach whose claim to a First Amendment right to kneel and pray at the 50-yard line after each game was denied by the Ninth Circuit (covering California, Oregon, Washington, Arizona, Nevada, Montana and Idaho) (Kennedy v. Bremerton School District (U.S. No. 21-418, cert granted 1/14/22)). The Bremerton School District suspended the coach after he refused to cease his weekly ritual of kneeling and praying at the 50-yard line after each game. The Ninth Circuit denied the First Amendment claim, holding that the coach’s public statements about his prayer activities belied his argument that is was a private religious act and evidenced his attempts to proselytize his religious beliefs. As such, allowing it to continue would violate the school district’s/government’s duty not to support any particular religion.

    The coach argued that the decision, if left standing, would virtually transform speech of a public employee into government speech, lacking any First Amendment protection. The school district argued against cert, claiming that it had given the coach an accommodation to pray before or after the game in the press box or anywhere else where he would not be surrounded by his team. The coach insisted on being able to pray at mid-field before the team and spectators had cleared the field. CUPA-HR will follow this case and report on the ultimate decision.

    COVID-19 Spousal Death May Be a Way Around Workers’ Compensation Defense to Employer Liability for Some COVID-19 Cases Contracted at Work 

    A California appellate court recently refused to dismiss a case filed by an employee who claimed her husband contracted and died of COVID-19, which she contracted from working on the employer’s assembly line (See’s Candies, Inc. v. Superior Court of L.A. County (2021 BL 485084, Cal. Ct. App. 2nd Dist. No. B312241,12/21/21)). The appeals court rejected the company’s argument that the husband’s death was a “derivative” injury of the employee’s injury/illness contracted at work and therefore barred by the workers’ compensation prohibition of individual lawsuits. This is a new area of the law and the cases popping up elsewhere may come to a different result. CUPA-HR will follow the issue as case law develops.

    U.S. Union Membership Among American Workers Declines to Record Low in 2021

    The percentage of American workers who are union members declined to 10.3 percent in 2021 to match its record low percentage of 2019. While union membership increased in 2020, the percentage dropped 0.5 percent in 2021 to the 2019 percentage according to the U.S. Department of Labor’s Bureau of Labor Statistics. In 2021, the number of union members declined to 14 million while the number of overall workers increased. The percentage of American workers who are union members has declined significantly since 1984 when approximately 20 percent of the U. S. workforce was unionized.



    Source link