Category: Title VII

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

    HR and the Courts — July 2024 – CUPA-HR

    by CUPA-HR | July 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.

    University of California and UAW Agree to End Grad Student Strike

    The rolling strike of University of California graduate students at several campuses, protesting the university’s handling of Israel-Hamas war protests is formally over as a result of the university and union agreement to extend the injunction granted by a California state court at the university’s request. The university successfully argued that the rolling strike violated the collective bargaining agreement’s no-strike provision. The UAW represents 38,000 grad students at several University of California campuses.

    UC student workers walked off their jobs at six campuses in May and continued a rolling strike until the court enjoined the strike activity. The university breach-of-contract litigation continues, as there remain issues to be decided by the court as to the breadth of the no-strike provisions and the university’s claim for damages resulting from the breach of the no-strike provisions.

    University Prevails in Title IX Lawsuit Alleging Student Sex Harassment at a Private Party Off Campus

    A federal judge recent ruled that a plaintiff student failed to provide evidence that the university had substantial control over the context in which the assault or sex harassment occurred to make the university liable under Title IX. The judge concluded that even though the university had control over the alleged harasser because of an alleged student code violation, this was not enough to substantiate jurisdiction under Title IX (Roe V. Marshall University Board of Governors (2024 BL 215044, S.D. W. Va. No. 3:22-cv-00532, 6/24/24)).

    When the harassment occurs off campus, the judge ruled that the court must find some nexus between the “out of school conduct and the school.” The court concluded that the incident in question took place at a private party at a private residence and the party was not sanctioned, hosted or sponsored by the university or an entity affiliated with the university. Moreover, permission for the party was not sought from the university, and the university was unaware of the party until it was over.

    The university’s Title IX office determined, four days after the incident, that the matter should be handled by the university’s Office of Student Conduct, which the judge concluded was consistent with Title IX regulations at the time. The student conduct office immediately issued an no-contact order between the student and the alleged harasser and conducted a six-week investigation.

    The male student (alleged harasser) was ultimately placed on probation and required to participate in an alcohol education program, do 20 hours of community service, and accept responsibility for violation of the student code. The plaintiff (alleged victim) was also put on probation and required to participate in an alcohol education program and complete 10 hours of community service, after admitting to underage drinking. In dismissing the case against the university, the judge also concluded that the male student (alleged harasser) also faced possible independent criminal penalties.

    Two Conservative Groups Are Bringing Court Challenges to Large Employers’ Workplace DEI Programs

    America First Legal, led by former Trump adviser Stephen Miller, has filed at least 15 lawsuits alleging that employer DEI programs are illegal under Title VII and has sent more than 30 letters asking the EEOC to probe employer DEI programs at large employers, including Morgan Stanley and IBM Corp. Academic institutions could be their next target.

    The second organization, American Alliance for Equal Rights, led by conservative activist Edward Blum, has claimed that these DEI programs violate Section 1981 of the Civil Rights Act of 1866, which affirms that all citizens are equally protected by the law. The organization has used the 1866 statute in challenging DEI programs at law firms, including Winston and Strawn, Morrison Foerster, and Perkins Coe. The 1866 statute is broader than Title VII. Plaintiffs suing under the 1866 statute avoid the Title VII damage cap and the requirement that a charge be filed with the EEOC before filing suit.

    Transgender Woman Reaches Settlement of Claim That She Was Wrongly Denied Medical Coverage

    A transgender woman plaintiff sued her employer’s group insurance plan, alleging that she was wrongly denied medical coverage for facial hair removal, which she claimed is an extremely important part of gender-affirming care. The plaintiff alleged that the care is deemed medically necessary for treating gender dysphoria by the World Professional Association for Transgender Health. The lawsuit claimed that the denial, based on the conclusion that the surgery was cosmetic and unnecessary, was inconsistent with the evidence presented that the treatment was medically necessary (Cox V. WSP USA Inc. Group Insurance Plan (N.D. Cal. No. 3-24-cv-01312, 6/6/24)).

    The plaintiff sought $5,000 in out-of-pocket expenses plus $20,000 for future services. The case was dismissed after the parties stipulated to the judge that they had reached an undisclosed settlement.

    Supreme Court Raises the Bar for the NLRB to Obtain an Adverse Injunction Against an Employer for Unfair Labor Practices

    The U.S. Supreme Court concluded that the federal courts should give no more weight to an NLRB request for injunctive relief against employers allegedly violating the NLRA unfair labor practice provisions than it would give other litigants in injunction cases (Starbucks Corp, V. McKinney (U.S. No. 23-367, 6/13/24)). The Supreme Court essentially held that a defending employer is entitled to discovery over the NLRB’s alleged evidence before the court can issue an injunction. In the past, the NLRB has been able to maintain secrecy over this information when seeking extraordinary relief (e.g. an injunction requiring reinstatement of employees allegedly terminated for supporting a union).

    Supreme Court to Determine Employer Burden of Proof to Obtain an Exemption From FLSA Minimum Wage and Overtime Provisions

    The Supreme Court has granted certiorari to resolve the split in appellate courts on the precise evidentiary burden applicable to employers attempting to justify an exemption to the application of the FLSA’s minimum wage and overtime provisions. Right now the circuits are split over whether an employer must prove an exemption by “clear and convincing evidence” rather than the lesser standard of “preponderance of the evidence.” The Supreme Court will resolve this split and decide which standard is applicable to employers going forward (E.M.D. Sales Inc. V. Carrera (U.S. No. 23-217, petition granted 6/17/24)).

    The issue involves whether the defendant firm’s sales personnel fall inside the “outside sales exemption.”  The company lost the case at trial, where the federal court held that it did not meet the “clear and convincing” standard, while numerous other appellate courts have applied the less stringent “preponderance of the evidence” standard.



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

    HR and the Courts — June 2024 – CUPA-HR

    by CUPA-HR | June 12, 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.

    Judge Halts Academic Workers’ Strike at Several University of California Campuses

    The University of California has taken legal action against United Auto Workers Local 4811, which represents some 48,000 academic workers and graduate students across UC’s multiple campuses. The lawsuit requested an injunction to end the rolling strike at six campuses, which the university contended is in violation of the applicable no-strike contractual provisions. The judge granted the university’s request for a temporary restraining order on June 7, 2024. The order will halt the strike until the judge conducts a hearing over whether to grant a permanent injunction enforcing the no-strike provisions of the applicable labor contract (Regents of the University of California v. UAW Local 4811 (Cal Sup Court, No. 30-2024-01403666-CU-MC-CXC, 6/7/24)).

    This case followed the university’s complaint to the California Public Employment Relations Board alleging that the union had violated the applicable no-strike provisions. The board filed a complaint against the union, arguing it failed to give the university “adequate advance notice” and “failed and refused to meet and confer in good faith,” but declined the university’s request to seek a court order halting the strike.

    Following its exhaustion of all remedies at the state board, the university filed its own state court complaint, seeking to end the strike. The complaint accused picketers of blocking entrances to university property, including hospitals, and illegally occupying buildings. The university argued that the breach of contract endangers lifesaving research at hundreds of laboratories across many campuses. The UAW claimed that the no-strike clause is inapplicable because the university violated state law by calling in police to break up pro-Palestinian encampments on several campuses and allegedly changed workplace rules in response to the protests. The proceedings will continue with a full hearing over whether to convert the restraining order into a permanent injunction further barring the strike activity.

    University of Florida Recruit Sues Over Claimed $13.85 Million NIL Deal — NCAA Proposes Settlement of NIL Class Action

    A former football recruit has sued the University of Florida’s football coach and boosters, alleging they recruited him with the promise of $13.85 million in name, image and likeness payments and then reneged. The complaint, filed in federal district court in Florida, alleges fraud, tortious interference and other claims. The plaintiff alleges that, after the NIL offer, he rejected other lucrative offers only to have the Florida offer “decrease drastically” (Rashada v. Hathcock (N.D. Fla., 3:24-cv-00219, complaint 5/21/24)).

    The plaintiff alleges that, as a 19-year-old college-bound athlete, he was persuaded by a network of university officials and donors to flip on his commitment to the University of Miami, but they never came through on the NIL promises. After the deal never materialized, the plaintiff went to the University of Arizona instead and ultimately transferred to the University of Georgia.

    Separately, the NCAA and the Power Five conferences have proposed a nearly $2.8 billion settlement of the class action claim against them relating to their former ban on NIL payments to student-athletes. If the settlement is approved, the NCAA also agrees that it would no longer attempt to regulate NIL payments, which would be solely up to each college and university to determine and administer (In Re College Athlete NIL Litigation (N.D. Cal., No., 4:20-cv-03919)).

    Court of Appeals to Review Whether Discharge for Refusal to Take Anti-Discrimination Training Is Itself Discriminatory

    The 7th U.S. Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) will decide whether to affirm a federal trial court’s dismissal of a discrimination claim brought by a White employee. The employee claimed he was discharged in violation of federal and state anti-discrimination laws for his refusal to take the employer’s mandatory anti-discrimination training, which he claimed was discriminatory. The plaintiff claimed the training was inherently biased against White employees, after admitting he had no knowledge of the contents of the training (Vavra v. Honeywell International Inc. (Case No. 23-02823, oral arg sched 5/21/24)).

    The trial court concluded that the plaintiff’s internal emails to the company’s president, which accused the company of “race baiting,” were protected communications. The court further concluded that the plaintiff was not terminated for the communications, but rather because of his refusal to take mandatory anti-discrimination training that was not itself discriminatory. The employer’s diversity, equity and inclusion and law departments had properly vetted the training and concluded it was intended to foster an inclusive work environment.

    U.S. Supreme Court Rejects White Professor’s Claims of Race and Sex Discrimination Filed Against HBCU

    The Supreme Court turned down a request for certiorari and declined to hear a White law school professor’s claim that the 5th U.S. Circuit Court of Appeals had erroneously dismissed her claim of race and sex discrimination and retaliation under Title VII and the Equal Pay Act. The law professor had claimed that the appeals court erroneously dismissed her claims that she and other female professors were treated poorly in violation of Title VII and the Equal Pay Act and that she was forced to resign from Texas Southern University, a historically Black institution. The court denied the professor’s two petitions for it to hear her case without issuing an opinion (Sacks v. Texas Southern University (Case Nos. 23-891 & 23-1031, Cert denied 5/13/24)).

    The plaintiff asked the Supreme Court to adopt a “totality of circumstances” standard in determining whether her claims of years of “alleged” harassment and continuing violations justified her conclusion that she felt compelled to resign. The plaintiff also complained that the lower court had denied her the right to receive female wage data while requiring her to identify male comparators to make her Equal Pay Act claims. The Supreme Court denied the professor’s request to be heard in the absence of a response from the university, which had waived its right to respond to the professor’s petitions.

    In Employment Law Matter, U.S. Supreme Court Rules Federal Courts Can No Longer Dismiss Federal Lawsuits Subject to Mandatory Arbitration

    The U.S. Supreme Court resolved a split among federal appellate courts on whether, under the Federal Arbitration Act, federal trial courts can dismiss rather than stay a lawsuit that is covered by the terms of a mandatory arbitration agreement pending the outcome of arbitration. The 1st, 5th, 8th and 9th U.S. Circuit Courts of Appeals have previously allowed dismissal while the 2nd, 3rd, 6th, 7th, 10th and 11th have ruled that the case must be stayed pending the outcome of the arbitration.

    The case involved a group of drivers who claimed they were misclassified as independent contractors rather than employees entitled to minimum wage, overtime and paid sick leave under federal and state laws. Both sides agreed that the dispute was subject to a mandatory arbitration agreement. The 9th Circuit ruled the case should be dismissed. The Supreme Court reversed, concluding that the specific provisions of the Federal Arbitration Act require the courts to stay the action while it is referred to arbitration, pending the outcome of the arbitration (Smith v. Spizzirri (US No, 22-1218, 5/16/24)).

    Texas Sues EEOC Over Guidance Protecting LGBTQIA+ Employees From Sex Harassment Relating to Their Choice of Pronouns and Bathrooms Consistent With Gender Identity

    The Texas attorney general has filed suit in federal court seeking to block enforcement of the Equal Employment Opportunity Commission’s recent guidance aimed at shielding LGBTQIA+ employees who seek to use pronouns and bathrooms consistent with their gender identity. The Texas suit alleges that the most recent EEOC guidance goes beyond the statutory limits of Title VII just as the prior EEOC workplace guidance, which was vacated in Texas federal court, did (The State of Texas v. EEOC (N/D. Tex., 2:21-CV-194-Z, Complaint, filed 5/21/24)).

    Separately, a coalition of 18 Republican attorneys general have also filed suit, seeking to block this EEOC guidance and alleging the same legal overreach by the EEOC.



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

    HR and the Courts — May 2024 – CUPA-HR

    by CUPA-HR | May 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.

    Unions Representing Student Employees File Unfair Labor Practice Charges Related to Student Protests

    Nearly 30 unions representing more than 100,000 student workers at 58 campuses throughout the country have issued a joint letter supporting protesting students and condemning violent responses to peaceful protests. Unfair labor practice charges have also been filed with the National Labor Relations Board against a small number of private institutions in protest of schools’ enforcement of their rules.

    The NLRB has found in the past that civil rights protests — for example, those connected to the Black Lives Matter movement — are protected concerted activity when they are tied to protesting employer or employment discrimination matters. However, commentators have drawn a distinction related to the Israel-Hamas war protests. While each unfair labor practice case will rise and fall on the specific facts related to the situation, a university enforcing safety rules and cracking down on protests will likely not violate the National Labor Relations Act. Additionally, if a union member participates in a protest unrelated to their employment and violates university rules, the sanctions involved will likely not violate the NLRA.

    Court of Appeals Affirms Dismissal of ERISA Lawsuit Against Georgetown University

    The U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the dismissal of an employee-filed Employee Retirement Income Security Act lawsuit. The lawsuit claimed that Georgetown University had packed its retirement plans with expensive and badly performing investment options.

    The lawsuit further alleged that Georgetown had offered its faculty and staff retirement plans with too many investment options and retained multiple recordkeepers, which drove up the administrative costs of the plans. A federal district court judge dismissed the amended complaint in April 2023, ruling that the amended complaint did not address the concerns that led to the dismissal of the original complaint.

    The Court of Appeals unanimously concluded that the original complaint failed to plead any adequate claims and the proposed amended complaint was futile as it did not cure the problem (Wilcox et al. v. Georgetown University et al. (Case no. 23-7059, DC Cir. 4/23/24)).

    Student-Athlete NLRB Unionization Decisions May Modify Taxability of Athletic Scholarships

    Although the NLRB’s decision in the Dartmouth College men’s basketball team case is under review, if the board affirms the decision that players are employees and can unionize, it could ultimately cause the IRS to rethink its current position that student-athletes receiving scholarships are not employees for purposes of the tax code. This could possibly include a change in the current position that these scholarships are not taxable as income.

    If the NLRB affirms the regional director’s decision, which many commentators conclude is likely given its composition under the Biden administration, the decision is not binding for the IRS. The IRS has independent authority to conclude whether these student-athletes are employees and are receiving taxable compensation in the form of scholarships under the Internal Revenue Code. Separately, the courts are wrestling with the question of whether student-athletes are employees under the Fair Labor Standards Act and are entitled to minimum wage and overtime. We will keep following these issues as they unfold.

    IRS Giving More Scrutiny to Tax-Exempt Status of Name, Image and Likeness Payments to Student-Athletes From Booster Donations

    Bloomberg reports that the IRS has begun revoking and not granting 501(c)(3) status to some groups formed to collect money from boosters to fund name, image and likeness payments to student-athletes. In testimony before the Senate finance committee, the IRS commissioner stated that they are scrutinizing those NIL groups that are not operating for tax-exempt purposes. These collectives have raised millions of dollars from boosters who generally expect those gifts to be tax deductible. For specific tax guidance, a tax professional should be consulted on questions arising in this area.

    U.S. Supreme Court Rules Job Transfers Can Violate Title VII and Other Anti-Discrimination Statutes

    The Supreme Court ruled unanimously on the issue of whether a plaintiff must prove significant harm to state a claim of discrimination under the applicable anti-discrimination statutes because of a job transfer. The court reversed the holdings of some circuit courts of appeal that “significant harm” must be stated to state a claim of job discrimination resulting from a job transfer.

    Nonetheless, the Supreme Court stopped short of eliminating the harm requirement entirely. The court held that a plaintiff must show that the transfer resulted in some level of injury or harm, concluding that the statute does not require by its terms the high bar of “significant” harm (Muldrow v. St. Louis (U.S. Case No. 22-193, 4/17/24)). The concurring justices, who did not dissent, argued that the change from significant harm to some other lower level of harm was confusing and would lead to further inconsistent litigation.

    NLRB Reports 10% Rise in Case Load in First Half of Fiscal Year 2024

    The NLRB reports that case filings of unfair labor practice charges or union representation votes rose 10% during the first half of fiscal year 2024 compared to the same period in the previous fiscal year. Union election petitions rose by 35% during this period, and unfair labor practice charges rose by 7%. The NLRB has jurisdiction over private institutions of higher education and has no jurisdiction over state-based public institutions. State public institutions are generally subject to state labor boards and state statutes with separate, but often parallel, rules. This uptick in private employer unfair labor practice charges and election petitions will likely be accompanied by an increase in activity by public-sector unions at public institutions of higher education.



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

    HR and the Courts — March 2024 – CUPA-HR

    by CUPA-HR | March 13, 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.

    Dartmouth College May Appeal NLRB’s Decision Allowing Basketball Players to Unionize

    The Dartmouth College men’s basketball team voted 13-2 to unionize, selecting the Service Employees International Union Local 560 to represent them in collective bargaining. While student-athletes at Northwestern University voted to unionize some 10 years ago, the National Labor Relations Board declined jurisdiction in that case. Here, the NLRB appears to be taking a different approach and has affirmed the regional director’s decision that the basketball players are employees of the college.

    Bloomberg reports that Dartmouth stated it has “deep respect” for its unionized workers but does not believe this path is “appropriate” for basketball players. Dartmouth has argued to the NLRB that its student-athletes are not employees and that its basketball players are participating in a voluntary extracurricular activity. The NLRB, with one dissenting vote, denied Dartmouth’s motion to stay its decision, ruling that the basketball players are employees of the institution. The legal path forward is complex, and we will report on developments as they occur.

    Separately, the NLRB is conducting a hearing on the West Coast involving an unfair labor practice complaint filed against the University of Southern California, the Pac-12 Conference and the NCAA regarding their refusal to bargain with a union representing football and basketball players at USC. The NLRB general counsel has publicly stated that she believes student-athletes are employees who should be able to unionize.

    Student-Athlete Employee Status Could Lead to Student Visa Problems

    The classification of college student-athletes as employees could lead to F-1 visa problems for international athletes enrolled in U.S. colleges and universities. The F-1 visa restricts work to 20 hours per week when classes are in session and 40 hours per week when classes are not in session. The F-1 visa is used by roughly 20,000 international athletes enrolled in U.S. colleges and universities.

    Possible workarounds are either the P-1 visa, which is a nonimmigrant visa used by professional athletes, or an O-1 visa, which is used by individuals with extraordinary ability. Commentators conclude that these workarounds are not feasible on the scale necessary to accommodate the number of international student-athletes involved. A legislative solution will probably be necessary to address this problem should the employee status of college athletes be confirmed by the NLRB, or in other litigation under statutes such as the Fair Labor Standards Act.

    Union Membership and Strike Activity Rose Dramatically in 2023

    Bloomberg Law’s statistical analyses show that union membership and strike activity rose considerably in 2023 to levels not seen in years. Unions organized almost 100,000 new workers in NLRB-supervised elections in 2023, the largest single year total since 2000. This is the fourth-largest total one-year organizing gain since 1990, according to Bloomberg Law statistics. This is also the first time since 1990 that unions have managed to increase their annual headcount for three years in a row.

    The news is similar on the strike activity front. Over 500,000 workers participated in work stoppages in 2023. This is the second-highest number since Bloomberg Law began collecting this data in 1990. The only year that saw more strike activity since 1990 was 2018, the year of multiple city- and state-wide teacher strikes.

    SpaceX’s Challenge to NLRB’s Administrative Procedures Is Transferred From Texas to California

    A federal district court judge in Texas recently granted the NLRB’s motion to transfer SpaceX’s constitutional challenge from federal court in Texas to federal court in the Central District of California, where the underlying facts, NLRB hearing, and decision took place (SpaceX v. NLRB (S.D. Tex., No. 24-00001, Motion Granted 2/15/24)).

    SpaceX argued that the Texas venue was proper because SpaceX has operations and employees in Texas who received and were subject to a company letter, distributed nationally, that the NLRB ruled violated employee rights under the National Labor Relations Act.

    The Texas federal judge rejected SpaceX’s arguments, concluding that the underlying California-based administrative proceedings were brought against a California-based company and involved its California employees. With the transfer of the case to California, SpaceX lost a potentially more favorable appeals court precedent and appellate review. The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) is viewed as more conservative than the 9th Circuit, which covers California. In addition, the 5th Circuit has in the past ruled that aspects of decisions by other federal agencies, including the Securities and Exchange Commission, violate the U.S. Constitution.

    Employer Risk Associated With Targeting Remote Workers for Termination

    Remote work is not in and of itself a protected classification under federal or state civil rights laws. Nonetheless, the reasons for remote work could be protected, such as a disability-related concern. Bloomberg Law commentators conclude that remote workers are more likely to be laid off or miss out on promotional opportunities than peers who work in the office or in hybrid environments. Also according to Bloomberg Law, studies demonstrate that remote workers are more likely to be women, persons of color and those with disability accommodations. Evidence that any of those protected factors contributed to the termination, layoff or failure to promote could give rise to a successful challenge of the employment action under either the Americans with Disabilities Act or applicable state or federal civil rights statutes.

    Disney Actor Tests California State Law Protecting Employees From Discharge for Off-Work Political Comments

    An actor in the Disney show “The Mandalorian” filed a lawsuit claiming that she was unlawfully terminated from the show because of political comments she made outside of the workplace. Actor Gina Carano claims she was terminated after social media posts comparing the treatment of Trump supporters to how Jews were treated during the Holocaust. The plaintiff also alleges that Disney took issue with other comments she made on the COVID-19 vaccine, gender identity and voter fraud during the 2020 election.

    The lawsuit has been filed in federal court in the Central District of California and is being funded by Elon Musk. The suit was filed under a California statute that has broader protections than Title VII in protecting off-work political comments and has no cap on damages. Section 1101 of the California Labor Code protects a worker’s right to political expression outside of work, including speaking up for a candidate or cause.

    The plaintiff also alleges sex discrimination and that Disney treated male actors more favorably in similar circumstances. She alleges that male stars Mark Hamill and her co-star Pedro Pascal were treated more favorably when they engaged in off-work political statements. The breadth of the protection and scope of the California statute will be tested by this litigation brought against Disney.

    NLRB Reverses Decision, Finds Home Depot Violated NLRA Over Employee’s Black Lives Matter Slogan

    A three-member panel of the NLRB ruled 2-1 that Home Depot violated the NLRA when it told an employee that he could not work with a “BLM” slogan on his company-issued apron, thus forcing his resignation (Home Depot USA (NLRB Case no. 18-CA-273796, 2/23/24)). The NLRB panel reversed the decision of the administrative law judge who had handled the trial of the case and had ruled in favor of Home Depot, holding that the company had the right to maintain its rules about company uniforms.

    The NLRB panel reversed, concluding that Home Depot violated the NLRA because the record demonstrated the employee’s protest was in furtherance of earlier group complaints about racism in the Home Depot workplace. In these circumstances, the NLRB concluded that the employee’s action in working with a Black Lives Matter slogan on his work apron was protected, concerted activity under the NLRA, as a “logical outgrowth” of earlier employee protests of race discrimination at the specific Home Depot store. The dissenting board member stated in his decision that the majority holding was an “unprecedented extension” of the “logical outgrowth” theory.



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

    HR and the Courts — September 2023 – CUPA-HR

    by CUPA-HR | September 13, 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.

    Unionization Increases to Record Levels, Largely Driven by Graduate Students and Medical Interns

    Unionization in the first six months of 2023 reached near record levels, surpassing last year’s numbers, which were driven by Starbucks employees’ organization drives. In the first six months of 2023, over 58,000 new workers were unionized, almost 15,000 more than last year’s significant levels. The size of new bargaining units has grown, with new units of 500 or more employees growing by 59% over last year. In the first six months of 2023, unions won 95% of elections in large units of over 500 employees compared to 84% in the first six months of 2022.

    According to a Bloomberg Law report, this increase coincides with a growth in graduate assistant and medical intern organizing. There have been union organization elections in 17 units involving graduate students and medical interns in the first six months of 2023. This is the highest level of activity in the sector since the 1990s.

    Court of Appeals Rejects Religious Discrimination Claim by Fire Chief Who Was Terminated After Attending a Religious Event on “City Time”

    The 9th U.S. Circuit Court of Appeals (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) rejected a former fire chief’s allegation of religious discrimination after he attended a church-sponsored Christian leadership event in place of attending a non-religious leadership training program he was asked to attend (Hittle v. City of Stockton, California (2023 BL 268076, 9th Cir. 22-15485, 8/4/23)). The court concluded that the fire chief’s supervisors were legitimately concerned about the constitutional implications of a city official attending a church-sponsored event.

    The fire chief claimed, as evidence of religious discrimination, that city supervisors questioned whether his attendance at the event was part of a “Christian Coalition.” He further alleged that the supervisors questioned whether he was part of a “Christian clique.” The court rejected the fire chief’s arguments that this questioning amounted to religious bias against Christians. The court concluded that the questioning was related to the report they received on his attendance at the church-sponsored event. The court noted that the supervisors did not use derogatory terms to express their own views. The case may be appealed to the Supreme Court, and we will follow developments as they unfold.

    University Wins Dismissal of Federal Sex Harassment Lawsuit for Failure of Professor to File a Timely Underlying Charge of Sex Harassment With the EEOC

    Pennsylvania State University won a dismissal of a male ex-professor’s federal sex harassment lawsuit alleging a female professor’s intolerable sex harassment forced him to resign. The Federal Court concluded that the male professor never filed a timely charge with the EEOC (Nassry v. Pennsylvania State University (M.D. Pa. 23-cv-00148, 8/8/23)). The plaintiff professor argued he was entitled to equitable tolling of the statute of limitations because he attempted to resolve the matter internally as opposed to “overburdening the EEOC.”

    The court commented that while the plaintiff’s conduct was “commendable,” the court was unable to locate any case where a plaintiff was bold enough to offer such a reason to support equitable tolling. The court dismissed the federal case, holding that there was no way to conclude the plaintiff professor was precluded from filing in a timely manner with the EEOC due to inequitable circumstances. The court dismissed the related state claims without prejudice as there was no requirement that the state claims be filed with the EEOC.

    Professor’s First Amendment Retaliatory-Discharge Case Over Refusal to Comply With COVID-19 Health Regulations Allowed to Move to Discovery

    A former University of Maine marketing professor who was discharged and lost tenure after refusing to comply with COVID-19 health regulations on the ground that they lacked sufficient scientific evidentiary support is allowed to move forward with discovery. The university’s motion to dismiss was denied (Griffin V. University of Maine System (D. Me. No. 2:22-cv-00212, 8/16/23)).

    The court held “for now” the professor is allowed to conduct discovery to flush out evidence of whether or not the actions which led to the termination were actually protected free speech. The court concluded that the actual free speech question will be decided after more facts are unearthed.

    U.S. Court of Appeals Reverses Employer-Friendly “Ultimate Employment Decision” Restriction on Actionable Title VII Complaints

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) reversed the long standing, 27-year-old precedent restricting Title VII complaints to those only affecting an “ultimate employment decision.” The employer-friendly precedent allowed the courts to dismiss Title VII complaints not rising to the level of promotion, hiring, firing and the like. The 5th Circuit now joins the 6th Circuit (covering Kentucky, Michigan, Ohio and Tennessee) and the D.C. Circuit (covering Washington, D.C.) in holding that a broader range of employment decisions involving discrimination are subject to Title VII jurisdiction.

    The 5th Circuit case involved a Texas detention center which had a policy of allowing only male employees to have the weekend off. The 5th Circuit reversed its prior ruling dismissing the case and allowed the case to proceed. This reversed the old “ultimate employment decision” precedent from being the standard as to whether a discrimination case is subject to Title VII jurisdiction.

    Union Reps Can Join OSHA Inspectors Under Newly Revised Regulations

    The U.S. Department of Labor has proposed revised regulations that would allow union representatives to accompany OSHA inspectors on inspections. The regulations, which were first proposed during the Obama administration, were stalled by an adverse court order and then dropped during the Trump administration.

    The proposed rule would drop OSHA’s current reference to safety engineers and industrial hygienists as approved employee reps who could accompany the inspector. The new rule would allow the OSHA inspector to approve any person “reasonably necessary” to the conduct of a site visit. Among the professions that could be approved are attorneys, translators and worker advocacy group reps. The public comment period on these proposed regulations will run through October 30, 2023.



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  • 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 — February 2023 – CUPA-HR

    HR and the Courts — February 2023 – CUPA-HR

    by CUPA-HR | February 2, 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.

    Supreme Court May Consider the Propriety of the Court-Created “Adverse Employment Action” Rule, Limiting Title VII Complaints

    The Supreme Court has asked the U.S. government (the Department of Justice and the Equal Employment Opportunity Commission) to weigh in on whether it should hear two cases challenging the court-created “adverse employment action” rule, which limits consideration of Title VII complaints to those involving an “adverse employment action.”

    The first case involves a female police officer who alleged that she was transferred out of her department because of her sex. The 8th U.S. Circuit Court of Appeals (covering Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota and Nebraska) affirmed the dismissal of the case because it found no adverse employment action where the transfer did not involve a loss of pay and rank or level of responsibilities. 

    The second case involves a former head of an Alabama legal services group who challenged the decision of the 11th U.S. Circuit Court of Appeals (covering Alabama, Georgia and Florida), which affirmed the dismissal of his case on “adverse employment action” grounds where the suspension challenged because of his race was a suspension with pay, and did not involve the loss of any wages or benefits.  

    Both plaintiffs claim that the “adverse employment action” requirement was court-created and not part of the actual Title VII statute. They both claim that the change in job status, which was the subject of their complaint, was involuntary, not to their liking, and based on their protected-class status. Therefore, they claim it should be actionable under terms of the Title VII statute. Both defendants oppose, claiming there is no conflict between the circuits.  

    Professor’s Bias Case Dismissed for Failure to Establish “Pervasive” Harassment, and HR Warning Not a “Substantial Adverse Employment Action”

    A Texas Court of Appeals recently overruled a trial court and dismissed a professor of Indian descent’s bias claims filed under the Texas state anti-discrimination statute. The appellate court concluded that the professor’s complaints of coworker comments reflecting negatively on his national origin did not rise to the level of “pervasive” harassment. Additionally, his complaint that he received a warning from HR about a complaint, which was previously closed, did not rise to the level of a “substantial adverse employment action,” and therefore was not actionable (Texas Southern University v. Nayer (Tex. App. 1st Dist. No. 01-21-00497-CV, 1/10/23)).

    The plaintiff, who is originally from India, was hired by the university in 2009 as an assistant professor in the administration of justice department. He was promoted to associate professor, received tenure and was appointed interim department chair in 2016. The professor alleged that coworkers used the term “you people” as a racial epithet to address him in emails and that he had received a warning from HR relating to a complaint which had been closed. While the trial court ruled he was entitled to a jury trial over his discrimination claims, the appellate court reversed the ruling and dismissed the case for failure to establish “pervasive” harassment and failure to raise a “substantial adverse employment action.   

    In 2022, U.S. Labor Unions Engaged in the Most Strikes Since 2007, With Education Service Employees the Majority of Employees Engaged in Strike Activity 

    More than 225,000 employees engaged in 314 strikes last year, more strikes than in any year since 2007. Education service employees accounted for three out of every five of those workers, according to an analysis report by Bloomberg News. The largest strike of the year was at the University of California, where approximately 48,000 graduate student workers were on strike for six weeks demanding increased wages and changes to working conditions. This strike was the largest strike occurring at any college or university since 1990, according to the Bloomberg database. The graduate student workers were represented by the United Auto Workers Union.  

    The American Federation of Teachers and the National Education Association engaged in the second highest number of work stoppages during 2022, surpassed only by the Service Employees Union. Collectively, these two unions had the largest share of union members involved in strike activity in 2022. Analysts conclude that dual economic factors in 2022 led to the increase in strike activity. The factors noted were a very tight labor market and rising inflation. Union leaders also claim that many other contract negotiations narrowly avoided strike situations as a result of diligent negotiation activity on both sides of the table.  

    Nonetheless, overall union membership dropped to a historic low percentage of the U.S. workforce in 2023. The unionized percentage of the American workforce dropped to 10.1 percent, lower than the previous low of 10.3 percent, recorded in 2019. While union membership actually increased in 2022 by some 273,000 employees, it was not enough to keep pace with the even larger growth on non-union jobs in 2022. These numbers are a continuation of the long-term slide in union membership in America. In 1983, the first year the government began collecting these numbers, the percentage of overall union membership in the U.S. was over 20 percent of the total American workforce.  

    Professor’s Race Discrimination Claim Based on Disparate Treatment of Student Complaints Moves Forward

    A former medical professor’s lawsuit survived a motion for summary judgement filed by her former university employer following allegations that non-minority professors were not terminated following student complaints. In allowing the case to proceed to discovery, the federal court judge concluded that the plaintiff “barely” raised enough facts to allow the case to proceed (Miller-Sethi v. City University of New York et al (S.D.N.Y. No. 21- cv- 08591, I/26/23)).

    The medical school professor’s contract was not renewed following a complaint from a student that the professor criticized her following the student’s refusal to continue working at a site which she was not comfortable working in because of the racial makeup of the area. The university argued that the comparators had received complaints regarding course evaluation or teaching techniques, which were not comparable to plaintiff’s situation. The judge ordered further discovery on the issue. 



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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 – June 2022 – CUPA-HR

    HR and the Courts – June 2022 – CUPA-HR

    by CUPA-HR | June 7, 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.

    Supreme Court to Determine Scope of Highly Paid Executive Employee Exemption Under the Fair Labor Standards Act (FLSA)

    The U.S. Supreme Court will review a 5th U.S. Circuit Court of Appeals decision in favor of an employee who was granted overtime status for his non-executive position that paid him $200,000 a year. This oil industry case will have application to all U.S. employers. The executive employee salary exemption threshold is currently $100,000 a year. At issue is whether compensation alone, absent executive/managerial status will exempt employees from the FLSA’s overtime requirements. The employee was a non-executive toolpusher on a drill rig and was paid $200,000 a year, twice the $100,000 executive salary exemption minimum.

    There is a split in the circuit courts on this issue leaving the Supreme Court to decide the issue. The 6th and 8th Circuits have ruled that non-executive employees should not be exempt from the FLSA no matter how much money they make. The 1st and 2nd Circuits allow an exemption for these workers under the salary exemption test.

    Women’s Basketball Coach Can Proceed With Title VII Sex Discrimination Lawsuit — Not Required to Arbitrate Discrimination Claims Under Her Employment Contract

    A U.S. District Court judge rejected the University of Montana’s summary judgement motion to dismiss a sex discrimination lawsuit and enforce mandatory arbitration under its former women’s basketball coach’s employment contract. The sex discrimination claims related to her performance evaluations, criticisms, and decision not to renew her employment agreement. The employment agreement had a general arbitration clause which covered contract disputes. However the court pointed out that the arbitration clause did not mention sex discrimination or bias claims. Therefore, the court concluded that the arbitration clause lacked the “requisite precision” required by the 9th Circuit for an individual to waive their rights to pursue Title VII claims in court (Schweyen V. University of Montana-Missoula (2022 BL 156392, D. Mont No. 9:21-cv-00138, 5/5/22)).

    The court concluded that the arbitration agreement, at most, was an agreement to arbitrate contract disputes as a basketball coach. The court pointed out that the clause did not mention giving up her right to file suit in court over non-contract issues such as sex bias.

    Federal Court Enjoins EEOC and HHS From Requiring Christian Employers and Healthcare Providers to Cover Gender Transition Surgery 

    A U.S. District Court trial judge in North Dakota has barred the Equal Employment Opportunity Commission (EEOC) and the Department of Health and Human Services (HHS) from requiring Christian employers and healthcare providers, under either Title VII of the Civil Rights Act of 1964 or the Affordable Care Act, to cover the cost of or provide gender transition surgery. The judge granted the injunction requested by the plaintiff, the Christian Employers Alliance, to prevent the EEOC and the HHS from requiring the group’s members to provide gender transition surgery until the case is tried on the merits and it is decided whether such a requirement violates the Christian employers’ First Amendment rights or rights under the Religious Freedom Restoration Act of 1993 (Christian Employers Alliance V. The EEOC, et al  (Case no. 1-21-cv-00195 D.N.D. 5/17/22)).

    The judge concluded that the plaintiff businesses must either violate sincerely held religious beliefs or face monetary losses, fines or civil liability. The judge concluded that the plaintiff’s likelihood of prevailing at trial on the merits, “weighed significantly in favor of granting the injunction.” The judge also enjoined the EEOC and HHS from enforcing the requirement to plaintiff employers’ insurers and third party administrators.

    Court of Appeals Reverses NLRB’s Decision Holding That the Employer’s “Back to the Salt Mine” Tweet Was an Unlawful Threat

    The 3rd U.S. Circuit Court of Appeals recently reversed a National Labor Relations Board (NLRB) decision holding that the The Federalist magazine violated the National Labor Relations Act when, during the union’s organization campaign, the magazine’s publisher tweeted that if the magazine’s employees unionized he would send them “back to the salt mine.” The appeals court ruled that no reasonable employee could actually interpret the publicly available tweet as a veiled threat. The court concluded that Twitter posts are often exaggerated and sarcastic, as Twitter encourages such approaches.

    The court also concluded that the publisher sent the tweet to 80,000 followers, which made it publicly available rather than directing it to the six magazine employees who were subject to the union organization drive.

     



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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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