Tag: Courts

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

    HR and the Courts — May 2023 – CUPA-HR

    by CUPA-HR | May 10, 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 Denies a Teacher’s Religious Accommodation Request to Be Excused From Student Pronoun Rule 

    A divided 7th U.S. Circuit Court of Appeals (covering Illinois, Wisconsin and Indiana) denied a Christian teacher’s request for a religious accommodation to be excused from the school district’s student pronoun rule, which required teachers to address students by the name and pronoun of their choice. Kluge v. Brownsburg Community School Corp. (7th Cir. No. 21-2475, 4/7/23). The Justice Department filed an amicus brief in support of the school district’s denial of the accommodation. The teacher requested an accommodation from the student pronoun rule, claiming that it violated his religious beliefs. The teacher requested that he be allowed as a religious accommodation to address all students in his classroom by last names only.

    The two-judge majority concluded, over the dissent of one judge, that the accommodation request constituted an undue hardship for the school district. The court ruled that granting the accommodation would disrupt the learning environment and disturb both students and faculty.

    The teacher has asked the full 7th Circuit to rehear and rule on the 2-to-1, three-judge decision. The 7th Circuit decided on April 27, 2023, to await full circuit court review until after the Supreme Court rules on a similar case regarding the scope of the employer-hardship provisions on deciding a request for a religion-based accommodation. The case pending before the Supreme Court is Groff v. DeJoy, argued before the Supreme Court on April 19, 2023.

    Survey Concludes That Workers in Office Spend 25% More Time on Mentoring and Other Job-Development Activities, Compared to When They Work Remotely

    In-office workers spend 25% more time on mentoring and career-development activities than when the same workers work remotely from home. In its 4/10/23 Daily Labor Report, Bloomberg published a poll completed by WFH Research, which compiled results from a survey of 2400 adult workers who were able to work from home and the office. The survey compared the workers’ in-office mentoring, formal training, and career development time to the time they spent on those activities when they worked remotely from home.

    In the same Daily Labor Report, Bloomberg referenced a Commentator study that found that workers who have more face-to-face interaction with managers are promoted at a higher rate. The Commentator concluded that, “Employees’ social interactions with their mangers can be beneficial to their careers.”

    Complaints Filed Under Federal Civil Rights Act of 1866 Are Subject to the Four-Year Federal Statute of Limitations, Not State-Based Statute of Limitations 

    The 4th U.S. Circuit Court of Appeals (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently ruled that Section 1981 complaints of discrimination filed under the Civil Rights Act of 1866 as amended are subject to the applicable federal four-year statute of limitations. The appeals court rejected the defendant’s assertion that the complaint was subject to the shorter three-year North Carolina statute of limitations on wrongful termination claims, even though the complaint was brought in North Carolina. The court concluded that the complaint was brought solely under the federal statute so the federal statute of limitations applied. The case was Chambers v. North Carolina Department of Justice et, al (4th Cir. No. 22-01629, 4/17/23).

    This case will likely have implications for Section 1981 complaints of discrimination filed against state-based public institutions of higher Education.

    NLRB Imposes Expanded Remedies Against Employers Found to Have Egregiously or Repeatedly Violated Their Duty to Bargain in Union Negotiations

    In a case involving a meat processor found to have repeatedly violated its duty to bargain in good faith with its union, the NLRB has issued a ruling that it would impose at least the following enhanced remedies against the offending employer and future similar employers. The enhanced remedies include reimbursement of the union’s bargaining expenses and lost pay to employees who sat in on bargaining sessions in which the employer bargained in bad faith. The case is Noah’s Ark Processors (N.L.R.B. Case # 14-CA-255658, 4/20/23).

    In addition, the order requires a reading of unfair labor practice notice and explanation of employee rights by the company’s CEO or by an NLRB staffer in the presence of the company’s CEO, a mailing of the notice to employees homes, the signing of the notice by a company official, publishing of the notice at local news outlets that have broad circulation and local appeal, and authorization of NLRB staffers to visit the employer facility to assess compliance and posting requirements. These remedies will have application to private colleges and universities, which are subject to NLRB jurisdiction.

    Federal Court Dismisses Claim of Religious Discrimination Following Termination of University Employee for Violation of COVID Safety Policies

    A federal district court for New Jersey dismissed an employee’s claim of religious discrimination, filed under Title VII of the Civil Rights Act, following the university’s termination of the employee for refusing to follow the university’s mandatory COVID safety policies. The federal district court judge dismissed the claim that the employee was unlawfully terminated for failing to follow the university’s mandatory COVID safety policies, because the employee failed to identify a sincere religious belief that prevented the employee from complying with the safety policies. The case was McKinley v. Princeton University (3:22-cv-05069, Fed D Ct N.J. 4/28/23). The safety policies included wearing a mask, asymptomatic contact testing, and collecting saliva samples from asymptomatic employees.

    The court in its eight-page decision dismissing the case granted the plaintiff leave to refile to correct the failure to identify a sincerely held religious belief.

    Split Jury Verdict Results in $1.4 Million in Damages Awarded to a Professor Claiming Retaliation in the Denial to Re-Review Her Tenure Denial 

    While a federal court jury rejected five of plaintiff’s claims of sex discrimination and parental status in the university’s denial of her tenure, it did award the professor a verdict on her claim that the denial of re-review of her tenure denial was in retaliation of her past charges of discrimination. The federal court judge affirmed the jury verdict, which resulted in awarding the plaintiff $1.4 million in damages. The case was Veikos v. Trustees of the University of Pennsylvania (E.D. Pa. 2:20-cv-04408, judgement entered 5/2/23).

    The federal judge rejected the university’s claim that the professor failed to properly mitigate her back-pay and front pay damages.



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

    HR and the Courts — April 2023 – CUPA-HR

    by CUPA-HR | April 12, 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.

    NLRB Rules Graduate Student Fellows With No Teaching or Research Assistant Responsibilities Are Not University Employees and Cannot Unionize 

    A National Labor Relations Board (NLRB) regional director in Boston recently issued a decision that approximately 1,500 graduate student fellows at Massachusetts Institute of Technology who receive a grant but do not have any teaching or research assistant responsibilities are not employees, cannot unionize, or join the university’s existing union of approximately 3,700 graduate teaching and research assistants (Massachusetts Institute of Technology (N.L.R.B. Regional Dir. No. 01-RC-304042, 3/13/23)).

    The existing union of graduate teaching and research assistants is organized by the United Electrical, Radio and Machine Workers of America. According to the decision, those graduate teaching and research assistants who receive an annual compensation package of approximately $120,000, including a tuition subsidy, stipend and medical insurance are university employees. Also according to the decision, the fellows who have no teaching or research responsibilities and typically work on their own thesis projects with some funding from the university are not university employees. The decision holding that the fellows are not employees is tied to a provision in the Columbia University decision, which held that students who have “unfettered ability” to pursue their own goals would not be considered employees because their compensation would be similar to a scholarship.

    Union Complaint Dismissed After Employer’s Attempt to Increase a Unionized Employee’s Work Production Ruled Permissible On-the-Job Coaching

    An NLRB administrative law judge recently dismissed a union claim that an employer committed an unfair labor practice by unilaterally changing working conditions when it suggested that a unionized staff reporter increase his output of written articles. The judge concluded that when the newspaper editors suggested that the reporter strive to write 15 articles every 30 days, that this action was a permissible attempt to coach, develop and improve the quality and production of the reporter’s work (The NewsGuild-CWA v. The Morning Call LLC (NLRB ALJ No. 04-CA-292410, 3/9/23)).

    The newspaper editors began meeting with the reporter every two weeks when they noticed he was lagging behind the paper’s standard article production goal of five articles per week. The judge noted that the editors did not threaten the reporter with penalties if he did not meet the goals. More importantly, the judge concluded that the goals were not a change in working conditions because they were less that the goals given to the rest of newsroom staff. The case clearly enforces an employer’s prerogative to meet with a unionized employee and suggest ways to improve job performance consistent with applicable workplace standards.

    EEOC Reports a 20 Percent Increase In Discrimination Charges and a Substantial Increase in Monetary Benefits Garnered for Victims of Discrimination in Fiscal Year 2022 

    The Equal Employment Opportunity Commission (EEOC) reported a 20 percent increase in the number of discrimination charges it received during fiscal year (FY) 2022 “as the nation emerged from the pandemic.” The charges filed against employers increased from 61,331 charges received in FY 2021 to 73,485 new charges received in FY 2022. The EEOC’s announcement came as the Biden administration proposed an increase in EEOC funding for the new fiscal year.

    The EEOC also announced that it increased the amount of monetary benefits it obtained for victims of discrimination in FY 2022. The agency reported that it obtained $513 million in benefits for victims of discrimination in FY 2022, up from $484 million in benefits obtained for discrimination victims in FY 2021.

    OSHA Reports a 20 Percent Increase in Inspectors Under the Biden Administration

    The number of federal workplace safety inspectors has increased by 20 percent during the Biden administration. The federal safety agency hired 227 inspectors during 2022, bringing its total inspectors to 900. Across all Occupational Safety and Health Administration (OSHA) staff positions, the agency has grown from 1,800 staff members to 2,100 members (17 percent). This enhances OSHA’s ability to perform more workplace safety inspections and investigate more pending employee workplace safety complaints. Another result of this significant increase in inspectors is that one in five inspectors now has less than one year of on-the-job experience.

    OSHA has faced criticism that it has not adequately responded to worker complaints, and the Department of Labor’s inspector general recently issued a negative report. The inspector general concluded that the agency in recent years (both 2019 and 2020) “… did not consistently ensure that complaints and referrals were adequately addressed, nor did it regularly enforce hazard abatement timelines.”

    Court of Appeals Skeptical of Employees’ “Fundamental Right” to Refuse State-Imposed Hospital Employer’s COVID-19 Vaccine Mandate 

    In a case involving a group of nurses who refused their hospital employer’s COVID-19 booster requirement for a number of personal, non-religious and non-disability-related reasons, the U.S. Court of Appeals for the 3rd Circuit (covering Pennsylvania, New Jersey and Delaware) appeared skeptical at oral argument (Sczesny et al v. The State of New Jersey, Governor Philip Murphy (3rd Cir. Case no. 22-2230, Arg 3/21/23)). The hospital enforced a state-mandated requirement in New Jersey. The attorney for the nurses argued that they had a “fundamental right” to refuse the vaccine boosters. The Court of Appeals panel noted that a number of courts that have ruled on this issue found no “fundamental right.”

    NLRB Issues Warning That Severance Agreements With “Overly Broad” Confidentiality/Gag Provisions Relating to Non-Disparagement Are Illegal Under Recent NLRB Case Law 

    NLRB general counsel issued guidance on March 23, 2023, that previously negotiated severance agreements with overly broad confidentiality/gag orders relating to non-disparagement of employers are illegal under the March decision of McClaren Macomb. The NLRB considers employer enforcement of such provisions to be a violation of the NLRA.

    The NLRB general counsel suggested that in designing new confidentiality agreements, employers should target “dissemination of trade secrets” based on “legitimate business justifications.” Additionally, agreements should be narrowly drafted to prohibit “maliciously untrue statements.”



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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 – January 2023 – CUPA-HR

    HR and the Courts – January 2023 – CUPA-HR

    by CUPA-HR | January 18, 2023

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

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

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

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

    NLRB Expands Damage Remedies Against Employers Who Commit Unfair Labor Practices

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

    HR and the Courts – December 2022 – CUPA-HR

    by CUPA-HR | December 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.

    University Wins Dismissal of “Deliberate Indifference” to Sex Harassment Claims on Statute of Limitations Grounds 

    A federal district court dismissed 12 counts of alleged indifference to sex harassment brought by six Jane Does, five of whom are current or former students and one of whom is a current professor. The case involves allegations against a male graduate student in French language studies who was arrested for rape of a student at another college in 2018. It is alleged that the university did not act on sex harassment allegations of inappropriate touching and “raunchy” texts following the incident at the other college.

    The graduate student allegedly raped Doe #1 in September 2020, and the university suspended him in November 2020 following an investigation for sexual harassment, endangerment and disorderly conduct. The graduate student fled the country for France in December 2020 and has not returned. The graduate student was indicted for rape stemming from the 2018 alleged assault in December 2021.

    The federal district court judge dismissed all the allegations on statute of limitations grounds (Doe #1 et al v. Board of Supervisors of Louisiana State University and Agriculture and Mechanical College et al ( M.D. La. No. 21-cv-00564, 11/3/22)). Louisiana has the shortest statute of limitations in the country at one year and the judge concluded that the majority of the claims were time barred, granting plaintiffs the ability to amend two of the 12 claims and refile them.

    Athletic Director Applicant Loses Reverse Discrimination Claim on the Basis of Interview Performance

    A white athletic director applicant who claimed superior qualifications for a senior athletic director position failed to show that the stated reason for his rejection (poor interview performance) in favor of a minority applicant was pretextual. The plaintiff was a long-time athletic director in the South Bend Indiana School district at the time he applied for a broader and more senior athletic director position. The judge ruled that while the plaintiff may have been more qualified “on paper alone” by a comparison of resumes with the minority applicant who was chosen for the job, the employer showed that a comparison of resumes was not the sole criteria for job selection (Groves v. South Bend Community School Corporation (2022 BL 347215, 7th Cir. No. 21-03336, 10/1922)).

    The judge went on to recognize that the minority applicant performed much better during his interview and convinced the interviewer that he would be much better able to mend the strained relationship the school district had with the State Athletic Association. The judge further observed that during the interview, the plaintiff stressed his experience in firing coaches and this was not helpful in the mind of the interviewer with regard to the State Athletic Association. The judge concluded that the facts supported the conclusion that interview performance was not a pretext to commit race discrimination. The judge’s conclusion was affirmed by the 7th U.S. Circuit Court of Appeals (covering Wisconsin, Illinois and Indiana).

    State of Florida Appeals Federal Judge’s Decision Blocking the Florida Law Restricting Employer Anti-Bias Training

    The state of Florida has appealed to the U.S. Court of Appeals for the 11th Circuit, asking the appellate court to reverse a federal judge’s decision that barred enforcement of the controversial law’s provisions, which prohibited employers in the state of Florida from promoting various sex- and race-based anti-bias concepts as part of employee training.

    The federal district trial judge issued a preliminary injunction barring enforcement of much of the law based on a conclusion that it violated employers’ First Amendment free speech rights under the U.S. Constitution. The state of Florida argued in its appeal that the statute does not restrict employer free speech, rather it blocks employer conduct “conscripting employees against their will into the audience as a condition of their employment,” (Honeyfund.com Inc et al v. DeSantis et al (Case No. 13135, 11th Cir.)).

    The federal trial judge had concluded that Florida state lawmakers wrote a law that attempts to squelch viewpoints on race and sex bias that they do not like. CUPA-HR will follow this litigation as it develops.

    Department of Labor Proposes Self-Correction Program for Retirement Plans With Late Participant Contributions and Loan Repayments

    The Department of Labor is proposing a new self-correction component under its Voluntary Fiduciary Correction Program (VFCP) to allow plan administrators to self-correct certain plan violations without the need to file a formal application and no action request. Under the proposed rule, the plan would report the correction through an online portal. The VFCP allows plans to self-correct certain Employee Retirement Income Security Act violations and avoid civil penalties by identifying and correcting certain plan design and implementation errors. Under the proposal, plans with late participant contributions or loan repayments could use this alternative to self-correct these violations.

    Under the proposed rule, the self-correction must be made within 180 days of the withholding or receipt of funds and the lost earnings must not exceed $1,000. Publication of the proposed rule is expected to be made in late November/early December, and comments must be submitted within 60 days of publication of the proposed rule.

    Terminated Softball Coach Sues for First Amendment Speech and Religious Discrimination Allegedly Related to Her Offer to Adopt a Student’s Baby

    A former assistant softball coach has filed a lawsuit in federal court alleging that her former university discriminated against her in the exercise of her free speech rights and religious beliefs when she was discharged after she offered to adopt a student’s baby and refused to reveal the identity of the student (Wiggins v. Idaho State University et al (D. Idaho No. 22-cv-00474, complaint filed 11/17/22)).

    The complaint alleges that the university violated the former coach’s First Amendment speech and exercise of religion rights by “coercing” the coach to convince the birth mother to disclose the pregnancy and birth to her parents and to withdraw her offer to adopt the baby. The complaint alleges that the university discharged the coach after she refused to disclose the name of the birth mother to the athletic director and dean of students so they could contact the birth mother‘s parents. The plaintiff alleges that her offer to adopt the baby was an “exercise of” her Christian faith. The plaintiff also alleges that the loss of employment forced her to sell her home and move her family to Texas.



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

    HR and the Courts – November 2022 – CUPA-HR

    by CUPA-HR | November 8, 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.

    EEOC Disavows Publicly-Expressed Views of Former General Counsel Regarding Abortion Travel Issues 

    The Equal Employment Opportunity Commission (EEOC) took the rare step of publicly disavowing the views expressed by its former general counsel who was appointed during the Trump administration and replaced during the Biden administration. The EEOC stated on October 31, 2022 that its former general counsel expressed her personal views, not that of the agency, when she warned that employers providing travel assistance to employees seeking an abortion but not for other procedures might be sued by the EEOC. Nonetheless, this is a developing area of the law and counsel should be consulted on these issues.

    Supreme Court Hears Oral Argument Over Continuation of Affirmative Action In College Admissions

    The Supreme Court heard oral argument over the continuation of Affirmative Action in college admissions on October 31, 2022 in Students for Fair Admissions (SFFA) v. Harvard and Students for Fair Admissions (SSFA) v. University of North Carolina (UNC). The first major Supreme Court decision involving Affirmative Action in college admissions occurred in 1978 in University of California v. Bakke. In Bakke, a divided Supreme Court approved the University of California’s Affirmative Action plan with four justices ruling in favor of the plan and four justices ruling that the Affirmative Action plan violated the constitution. The remaining solo opinion of Justice Lewis Powell coupled with the four votes in favor of Affirmative Action became the precedent. Justice Powell concluded that a race-conscious admissions program could theoretically satisfy constitutional strict scrutiny by being narrowly tailored to promote a diverse student body.

    In 2003, a majority of the Supreme Court endorsed Justice Powell’s solo opinion in Grutter v. Bollinger when Justice Sandra Day O’Connor added in the majority opinion that the Court expects that such policies will no longer be necessary in 25 years.

    The Supreme Court set aside two hours to hear oral argument in two lawsuits brought by the SFFA, an anti-Affirmative Action group, against Harvard University and the University of North Carolina. The SFFA wants the Supreme Court to overturn Justice Powell’s solo opinion in the Bakke case and end consideration of race in college admissions. The group argues among other things that current Affirmative Actions policies routinely discriminate against Asian Americans who do not receive racial preferences. Both colleges deny that Affirmative Action policies discriminate against Asian Americans.

    To complicate matters further, both cases were coupled for oral argument, but were uncoupled and heard separately because Justice Ketanji Brown Jackson recused herself for the Harvard case because of past work on Harvard’s Board of Overseers.

    Supreme Court Considers Long-Standing Preemption of State Laws Barring Employer State-Based Claims of Destruction of Property During Labor Disputes

    The Supreme Court will also reconsider this term its 60-year-old decision in San Diego Building Trades v. Garmon (commonly referred to as the Garmon Preemption Doctrine), in a case in which an employer is seeking to sue a teamsters local union alleging common law state claims of intentional destruction of property during a labor dispute and commencement of a strike (Glacier Northwest Inc. v. International Brotherhood of Teamsters, Local 174 (US No. 21-1449)). The Supreme Court ruled in the Garmon case that the federal National Labor Relations Act (NLRA) preempts and therefore prohibits all state court lawsuits against unions, concluding that an employer’s sole remedy is subject to the provisions of the NLRA, and that sole remedy for relief is up to the National Labor Relations Board (NLRB).

    In the case at hand, the Washington State Supreme Court dismissed an employer’s common law lawsuit against Teamster Local Union No. 174 for intentional destruction of property holding that under Garmon preemption the employer’s sole remedy is before the NLRB, which does not grant property damages to employers so harmed. The employer in the case alleged that its teamster union drivers returned the employers ready mix concrete trucks fully loaded with concrete to the yard prior to leaving on strike with the concrete in the trucks ready to harden and therefore destroyed the trucks. The teamsters claimed that they left the trucks running so that they could be unloaded safely.

    Some commentators conclude that if the Supreme Court alters Garmon broadly and allows such lawsuits to proceed, it could trigger a new and effective employer weapon in holding union’s liable for economic consequences of strikes and other actions taken during labor disputes. Those commentators also point out that if the Supreme Court broadly limits preemption, it could lead to conservative-leaning states to enact legislation restricting union conduct during strikes.

    California Joins Growing List of States Expanding Paid Leave Benefits

    California’s recent enactment of paid leave protections requiring employers to provide employees with paid leave to care for individuals who are not legal relatives joins the growing list of states regulating this area of employee benefits. So far, 11 states and the District of Columbia have enacted paid leave programs. Five of those states (Colorado, Connecticut, New Jersey, Oregon and Washington) allow employees to use those benefits to take care of non-relatives designated as “akin to family.”

    Nationwide, this is leading to a unique patchwork of requirements depending on where the employee is employed. Research should be conducted in your local jurisdiction to guide your institution on the breadth and application of possible city and/or state requirements. In addition, remote work in another state may also alter which state’s laws applies.

    U.S. Court of Appeals to Address Whether Sovereign Immunity Exempts State University From Federal Whistleblower Wrongful Discharge Claims

    The U.S. Court of Appeals for the 4th Circuit (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) will address whether Maryland state sovereign immunity applies to Morgan State University and Maryland State University in a case involving federal whistleblower wrongful discharge claims by the university’s former director of broadcast operations (Williams v. Morgan State University (4th Cir., Case no 21-01918, 10/13/22)).

    The plaintiff complained that the university mishandled a debate between Baltimore mayoral candidates and that she was ultimately discharged because she claimed that the mishandling may have violated the Federal Hatch Act and Federal Communications Commission regulations. The federal trial court dismissed the plaintiff’s federal claims, holding that while Maryland had waived sovereign immunity with respect to state tort claims, it did not do so regarding federal claims. The Court of Appeals has taken the unusual position of asking the Maryland State Court of Appeals whether the state has waived sovereign immunity with regard to federal tort claims.

    The plaintiff also added a federal whistleblower claim that the university’s dean and other professors were intentionally inflating expense numbers to federal and state agencies to “pad the university’s funding.”

    NLRB Returns to In-Person Manual Union Elections to Replace Mail-In Ballots Mandated During COVID-19 Pandemic

    In-person voting at employer premises in NLRB-supervised union elections is returning as the primary method of voting as the NLRB modifies the rules that it enacted during the onset of the COVID-19 pandemic, which lead to a great increase in mail-in voting. Nearly 75 percent of the 3,185 NLRB-supervised elections, which were conducted since the start of 2020 during the pandemic, were conducted by mail according to Bloomberg BNA. Unions prevailed in 76 percent of the mail-in elections as opposed to prevailing in 68 percent of the in-person elections. Employers generally prefer in-person manual elections because of the NLRB rules, which ensure secrecy, avoid electioneering around voting areas and arguably prevent voter fraud coercion.

    Employer groups argue that there is greater turn out during in-person manual voting. Unions claim that employers have an unfair advantage at in-person, manual voting because the election takes place on the employer’s “home turf.”



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  • 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.



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

    HR and the Courts – September 2022 – CUPA-HR

    by CUPA-HR | September 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.

    University Football Coach’s First Amendment Retaliatory Discharge Claim For Posting “All Lives Matter” Sign On His Office Door Proceeds

    A federal district court judge recently denied a University of Illinois motion to dismiss its former offensive coordinator’s claim that his retaliatory termination was in violation of his First Amendment rights by posting a handwritten note on his office door stating “All lives matter to our lord and savior Jesus Christ.” The federal judge ruled that the former coach was not acting within his official duties when he posted the note. The judge concluded that the plaintiff was not paid by the university to decorate his office door, but rather was paid to coach football. Therefore, the note expressed his personal views (Beathard v. Lyons (C.D. Ill,. No, 21-cv-01352, 8/11/22)).

    The court ruled that it is premature to decide whether the university can justify the termination because “there is not enough information to properly weigh” the interests of the university against that of the public employee in this matter. The plaintiff alleges that someone posted a general statement without his permission that supported Black athletes at the university in the wake of George Floyd’s death. He claims to have taken down the note and posted his own handwritten note. According to the complaint, his note upset some players who boycotted practice. CUPA-HR will follow developments in this case.

    Federal Appellate Court Holds That Gender Dysphoria Is a Disability Covered Under the ADA

    The Fourth Circuit Court of Appeals (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently became the first federal appellate court to rule that gender dysphoria is a disability covered under the Americans with Disabilities Act (ADA). The 33-page majority decision was accompanied by a 21-page dissent. The appellate panel ruled 2-to-1 that gender dysphoria is covered under the ADA (Williams v. Kincaid (4th Cir. 21-2030. 8/16/22)).

    The ADA contains a statutory provision excluding gender identity disorders from coverage under the ADA. The appellate court noted that the American Psychiatric Association (APA) removed gender identity disorders from its diagnostic manual nearly a decade ago. Gender identity disorders had referred to a condition of identifying as a different gender. The APA replaced the gender identity disorder diagnosis with the more modern diagnosis of gender dysphoria. Gender dysphoria is currently contained in the APA’s diagnostic manual and is a “clinically significant distress or impairment related to a strong desire to be another gender.” The APA says that the condition can interfere with an individual’s social life, their ability to do their job and other daily functions.

    The appellate court concluded that the “plain meaning” of the ADA’s exclusion of gender identity disorders as “it was understood at the time of enactment” does not then or now exclude gender dysphoria from ADA coverage. The court concluded that “the obsolete definition focused on cross gender identification; the modern one on clinically significant distress.” The dissent disagreed stating that “Judicially modifying the meaning of a statute because of society’s changing attitudes not only invades the province reserved for legislature, it turns the statute into a moving target.”

    Transgender Class Against the State of West Virginia Alleging State’s Denial of Gender-Affirming Care Violates Obama Care Statute Prevails in Trial Court

    A class of more than 600 transgender Medicaid participants prevailed in federal court against the state of West Virginia where a federal judge held that the state’s denial of gender-affirming care violated the federal anti-discrimination provisions of the Obama Care statute and the U.S. Constitution (Fain et al v. Crouch et al (3:20- cv-00740 S.D. W.Va.. 8/2/22)). The case may have applicability to other state medical and health plans.

    The court recognized that often the same procedure is used to treat a variety of cases and it is unlawfully discriminatory to deny transgender patients similar treatment given to non-transgender patients.

    Court of Appeals Approves NLRB Order for Private Employer to Pay Union Legal Fees Incurred in Collective Bargaining Process

    In a case applicable to private colleges and universities which are subject to National Labor Relations Board (NLRB) jurisdiction, the U.S. Court of Appeals for the Ninth Circuit (covering California, Oregon, Washington, Montana, Idaho, Nevada and Arizona) affirmed an NLRB decision ordering an employer to pay its union’s legal fees incurred in the collective bargaining process (NLRB v. Ampersand Publishing (9th Cir. No. 21-71060, 8/11/22)).

    The Ninth Circuit concluded that although the NLRB lacks jurisdiction to award attorney fees as a remedy in the litigation context, it is fully within their authority to award such a remedy in the collective bargaining context. In this case, the union filed unfair labor practice charges alleging the employer’s refusal to bargain. The union claimed it had to incur extra attorney fees as part of the bargaining process because of the employers violation. The court rejected the employer’s argument that the legal fees were akin to litigation costs because of the unfair labor practice charges filed with the NLRB. The NLRB disagreed and attributed the attorney fees of $42,000 to the collective bargaining process. The case involved the Santa Barbara News Press as the employer and a local teamster affiliate that has incurred the legal fees.

    IRS Initiates Pilot Program Allowing Workplace Employee Benefit Plans to Correct Errors Before Formal Audits Commence

    Under a new pilot program, the Internal Revenue Service (IRS) will allow workplace benefit plans to correct errors before investigators formally commence an audit. As part of a new pilot project, about 100 U.S. workplace benefit plans, including retirement plans, have received letters from the IRS since June allowing selected plans a 90-day window to correct mistakes in plan design, administration or documentation before regulators launch formal audits or close out case files.

    Self-identified corrections of this sort are not new to the IRS, however, before this pilot they were only available to employers who had not been targeted by an audit.

    Federal Judge Blocks Florida Workplace Bias Training Restrictions 

    A federal district court judge approved a preliminary injunction barring the enforcement of a Florida statute which restricts workplace bias training from teaching about unconscious bias. The Florida statute known as the Individual Freedom Act (IFA) bars employers from endorsing various race, sex and ethnicity-based concepts during workplace training.

    The plaintiffs are a coalition of employers and diversity and inclusion specialists who conduct workplace training. The judge ruled that the Florida statute likely violates the First and Fourteenth Amendments and that the plaintiffs will incur irreparable harm if the IFA is allowed to be enforced (Honeyfund.com Inc. et al v. Ron DeSantis et al (Case no. 4:22-cv-00227. N.D. Fla., 8/18/22)).



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

    HR and the Courts – August 2022 – CUPA-HR

    by CUPA-HR | August 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.

    EEOC Reaches Settlement Banning Employer Collection of Family COVID-19 Testing Results — GINA Implications 

    In a case involving a dermatology medical practice in Florida, the EEOC reached a settlement of the charge it brought against the employer medical. The case alleged that the employer violated the Genetic Information Nondiscrimination Act of 2008 (GINA) when it collected family COVID-19 testing results of its employees. Title II of GINA bans employers from collecting an employee’s genetic testing results and a worker’s family medical history.

    However, the EEOC also issued guidance stating that an employer can still ask its employees if they had contact with anyone who has been diagnosed with COVID-19 or who has had symptoms of COVID-19. Nonetheless GINA prohibits employers from inquiring directly and specifically as to the COVID-19 status of an employee’s family members.

    The EEOC also recently issued guidance on July 12, 2022, that, going forward, before requiring employees to submit to COVID-19 testing, employers should consider whether current pandemic circumstances and individual workplace circumstances justify viral screening of employees. Essentially the EEOC’s position is that before going forward with workplace COVID-19 screening, the employer must demonstrate a “business necessity” based on general pandemic circumstances and individual workplace circumstances.

    Federal Court Holds That Discharge Proximity to an Employee’s Filing for Extended FMLA Leave Warrants a Jury Trial Over Retaliatory Discharge Claims 

    A federal district judge recently ruled that a plaintiff’s claim that her discharge shortly after seeking an extension in FMLA leave to deal with mental health problems was retaliatory  warrants a jury trial over FMLA retaliatory discharge allegations and dismissed the employer’s motion for summary judgement. The plaintiff was a human resources manager who allegedly suffered from depression and anxiety. The employer argued that it was entitled to summary judgement because the plaintiff was discharged before the employer made a decision on the FMLA extension request. The judge concluded that gaps and inconsistencies in the employer’s explanation of the reasons for discharge warrant a finding of fact by a jury as to the timing and reason for discharge (Moryn v. G4S Secure Solutions USA, Inc. (2022 BL 222775 Dist Minn. No. 0:21-cv-00123, 6/28/22)).

    The plaintiff had requested and received a three-month leave of absence based on the recommendation of her physician for mental health reasons. When the three-month leave concluded, the employee requested an additional month followed by a part-time work schedule that progressively added more days to the job.

    Separately the judge dismissed the allegations under Minnesota state discrimination law related to disability discrimination and the allegations that the employer failed to accommodate the plaintiff.

    Court of Appeals Rules That a State Agency’s Banning of “Black Lives Matter” Adornments to Employee Uniforms Violates the First Amendment

    The U. S. Court of Appeals for the 3rd Circuit (covering Pennsylvania, New Jersey and Delaware) affirmed the decision of a federal trial court, which ruled that a Pennsylvania local transit authority violated the First Amendment guarantee of free speech by prohibiting Black Lives Matter adornments on employees’ uniforms as part of its policy prohibiting political and social adornments on employee uniforms.

    The court of appeals also ruled that the Allegheny County Port Authority’s policy revision, which allowed employees to wear only certain masks to make it easier for the authority to enforce its ban on Black Lives Matter messaging, violated the First Amendment. The case challenging the transit authority’s policies was brought by the employees’ union in Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County (3rd Cir. No. 21-1256, 6/29/22 ).

    U.S. Supreme Court Rules in Favor of Football Coach’s After-Game Prayer, Concluding His Discharge Violates the First Amendment Free Speech and Religion Provisions 

    In a long-awaited and controversial decision, the U.S. Supreme Court ruled against a school district firing of a football coach who refused to abandon his long-practiced ritual of kneeling in prayer at the 50-yard line at the conclusion of each football game. In doing so, the Supreme Court overruled the decision of the 9th U.S. Circuit Court of Appeals ruling in favor of the school district. The football coach argued that he had agreed to the school district’s demands that he stop leading prayers with his players, but wanted to continue taking a knee in prayer alone after each game.

    Justice Neil Gorsuch concluded that the case was about “three quiet prayers,” and because no student joined in those prayers, the coach was acting as a private citizen, not a school employee or coach. The justice concluded that the coach was not acting within the scope of his activities as a coach and therefore his actions were protected by the First Amendment. The Supreme Court decision was a divided one, 6 to 3 (Kennedy v. Bremerton School District ( US 21-418, 6/27/22 )).

    NLRB Reports That Private-Sector Union-Organizing Petitions Have Risen 58% and Unfair Labor-Practice Charges Filed by Employees Have Risen 16% in Fiscal Year 2022

    The National Labor Relations Board (NLRB) reported a sharp increase in private-sector union-organizing petitions filed during the first three quarters of fiscal 2022 (October 1-June 30), concluding that union-organizing petitions rose by 58%. The increase in union-organizing petitions has been across the board in the private sector and not limited to high-profile organizing nationwide at Starbucks and Amazon. U.S. workers filed 1,892 organizing petitions in the first three quarters of fiscal 2022 as compared to 1,197 petitions in the first three quarters of fiscal 2021.

    The data also show that U.S. workers filed 16% more unfair labor-practice charges against employers during the first three quarters of fiscal 2022. Unfair labor-practice charges at the end of June had increased from 11,451 in fiscal 2021 to 13,105 in fiscal 2022.



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