by CUPA-HR | January 15, 2025
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
Dartmouth Men’s Basketball Team, SEIU Withdraw Union Petition
In March 2024, the Dartmouth College men’s basketball team voted 13-2 in favor of joining the Service Employees International Union Local 560 after the National Labor Relations Board regional director ruled that the players were employees eligible to vote in an NLRB-supervised representation election. On December 31, 2024, Local 560 pulled back its representation petition, and the NLRB will dismiss the case (Trustees of Dartmouth College (N.L.R.B. No. 01-RC-325633, Petition Withdrawn 12/31/24)).
An SEIU spokesperson stated that they withdrew the petition to preserve the legal precedent of the NLRB regional director’s decision holding that the basketball players were employees of Dartmouth. While SEIU will no longer participate as the collective bargaining representative, the union claims it will pursue its goals via a change in tactics. Dartmouth maintains that the regional director’s decision ruling that the basketball players are employees is legally erroneous.
The employee status of student-athletes is still subject to NLRB litigation in the University of Southern California and Pac-12 case. The NLRB is pursuing unfair labor practice charges against USC and the Pac-12 as joint employers following their refusal to bargain with a union on the grounds that basketball and football players are students and not employees. We will continue to follow developments in this area as they unfold.
Federal Court Allows Muslim Professor to Proceed With Religious Discrimination Claim — Dismisses Age Discrimination Claim
The plaintiff professor, an immigrant from Bosnia and a Muslim, has had a non-tenure-track position for more than a decade with Teachers College, Columbia University. She alleged in federal court that she was discriminated against because of her religion and age when the university did not offer her a tenured position. While the court allowed the religious discrimination and retaliation portions of the complaint to proceed, it dismissed her allegations that she was also denied the tenure-track position because of age and age-related comments (Sabic-El-Rayess v. Teachers College (S.D.N.Y. No.-24-cv-2891, 12/5/24)).
The plaintiff alleged that no Muslim professor has ever received a tenure-track position in Teachers College, despite many being qualified, and that university leaders made remarks that could be construed as anti-Muslim. The plaintiff claims that the university’s rationale for its decision — that she lacked peer-reviewed publications — is false. The court also allowed the plaintiff’s allegations that she was retaliated against by a salary reduction after she made her religious discrimination complaints to proceed, notwithstanding the university’s denial of such allegations.
Employer Sued in Class Action for Allegedly Mismanaging Pension Fund
An employee group has filed a class action lawsuit against a national sports retailer alleging that the employer violated pension plan rules. The employee group alleges REI used non-vested pension fund employee forfeitures to reduce contributions otherwise owed to other employees, rather than adhere to plan provisions requiring the employer to use the funds to pay amounts owed for rehired participants or to pay administrative expenses (Smith v. Recreational Equipment Inc. (W.D. Wash, No. 3:24-cv-03062, complaint, 12/17/24)). Plaintiffs propose to represent a class of 24,000 participant employees.
Plaintiffs claim that the employer used more than $5.8 million in forfeitures incorrectly from 2018 to 2023. Similar claims along these lines have been litigated in other courts, with some courts dismissing the claims in favor of the employer and others allowing the litigation to continue. It appears to be an unsettled issue at this time.
Judge Rules Terminated Athletic Director Entitled to Jury Trial Over Allegations of Sex and Age Discrimination — Case Dismissed Subject to a Confidential Settlement
A university’s first woman athletic director, who was terminated for alleged poor athletic team performance, is entitled to have her claims of age and sex discrimination heard by a federal court jury. The plaintiff alleged that she was discriminated against on the basis of age and sex when she was replaced by a man who was 27 years younger. The judge pointed to this in ruling that a jury could find in the plaintiff’s favor (Ford-Kee v. Miss. Valley State University (2024 BL 460757 N.D. Mis. No. 4:23-cv-00107, 12/17/24)).
The university president testified that hundreds of people recommended that the athletic director be fired, but he refused to identify people calling for the termination. The court concluded that this did not evidence any discriminatory intent by the president, but it did raise the question of whether the president was influenced by discriminatory views of others. The plaintiff alleged that the poor team performance was an after-the-fact rationalization and that the university president was swayed by the “sexist” views of the athletic foundation and key alumni. The plaintiff claimed the president did not raise poor team performance as a reason for the termination during her final meeting, but rather stated it was time for a change.
Bloomberg later reported that the parties reached a confidential settlement dismissing the case, which will no longer go to trial.
Federal Appeals Court Rules No Private Right to Sue Under Law Prohibiting Employment Discrimination Against Marijuana Users
Under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Market Place Modernization Act (CREAMMA), employers are specifically prohibited from discriminating against workers over the age of 21 for their use or non-use of cannabis. The 3rd U.S. Circuit Court of Appeals recently affirmed the decision of the federal trial court, dismissing the case in which the plaintiff alleged cannabis use employment discrimination (Zanetich v. Walmart Stores East Inc. (0:23-cv-01996, 3rd Cir. 12/9/24).
The plaintiff alleged that his job offer was rescinded after he tested positive for cannabis use. Nonetheless the appeals court dismissed the case, holding that the CREAMMA statute contains no language creating or suggesting a private remedy. The appeals court also denied the plaintiff’s request to remand the case to the New Jersey Supreme Court so that the New Jersey court could interpret the statute. The appeals court concluded that the absence of an express remedy providing a private right to sue under CREAMMA was a deliberate choice of the legislature rather than an oversight.
University Prevails in Gender Bias Claim Raised by Former Athletic Director
The 11th U.S. Circuit Court of Appeals, in a split 2-1 decision, held that a university was entitled to a dismissal of a gender-based pay discrimination claim brought by the university’s former athletic director. The former athletic director claimed that her male successor was discriminatorily paid $170,000 annually compared to her last salary of $135,000. The court concluded that the university raised legitimate factors other than gender which led to its decision to pay the male athletic director more (Williams v. Alabama State University (11th Cir., No. 23-121692, unpublished, 12/23/24)). The majority of the three-judge appellate panel concluded that the university was justified in paying the male athletic director more because of his 10 years of experience in athletic administration leadership and because of his Ph.D. This compared to the plaintiff’s two years of relevant experience and a master’s degree.
The appeals court pointed out that this is not a case of two employees being employed contemporaneously at different salaries to perform the same job. Rather, the court concluded that the employer met the salary demands of a more experienced leader for the job in order to secure him. One judge dissented from the decision to dismiss the case. The dissenting judge concluded that university leaders made a number of comments concerning this selection that a jury should be able to hear and consider.
