Tag: February

by CUPA-HR | February 12, 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.

EEOC Reports That It Collected a Record $700 Million for Workers in 2024 in Discrimination Claims

The Equal Employment Opportunity Commission collected nearly $700 million for workers in 2024, eclipsing the previous record of $660 million collected in 2023. The agency reported that almost $470 million was collected for private sector, state and local workers through mediation, conciliation and administrative settlements. Nearly $200 million was collected through mediation, conciliation and administrative settlements for federal workers. An additional $40 million was collected for employees through litigation.

Of the 111 lawsuits filed by the agency in fiscal year 2024, 40% involved claims under the Americans with Disabilities Act and 6% involved claims under the Age Discrimination in Employment Act. Most of the remainder involved Title VII claims of race, color, religion, sex, or national origin discrimination. More than a dozen of these lawsuits involved systemic allegations raised for multiple employees.

Trump Administration Firing of NLRB and EEOC Members Leaves Agencies Without a Quorum to Do Business

The Trump administration discharged, in unprecedented fashion, sitting members of the National Labor Relations Board and the Equal Employment Opportunity Commission, leaving both agencies without a quorum to do business. The Supreme Court has ruled that the NLRB cannot issue decisions without a quorum. This means that the NLRB cannot decide unfair labor practice cases or decide appeals of union election cases until it regains three members confirmed by the Senate. In addition, the Trump administration terminated the sitting independent NLRB general counsel who makes decisions on what cases to prosecute before the board.

Without a quorum, the EEOC cannot issue new regulations or guidance, nor revoke or edit existing ones. In addition, without a quorum, the EEOC cannot vote to initiate new class action cases and is limited in taking on new enforcement litigation.

Court of Appeals Revives Challenge to Fellowship Program — Case Dismissed After Mutual Settlement

The 2nd U.S. Circuit Court of Appeals (covering Connecticut, New York and Vermont) reversed a trial judge’s decision dismissing a challenge to a fellowship program at Pfizer. To address challenges in recruitment, retention and promotion of diverse employees, Pfizer created and reserved its fellowship program for Black/African American, Latino/Hispanic, and Native American students. The plaintiffs contended that the fellowship program unlawfully discriminated against non-minority individuals (Do No Harm v. Pfizer Inc. (2nd Cir. No. 23-15, Opinion 1/10/25)). The three-judge panel remanded the case back to the trial judge to review whether the dismissal was proper.

This case is another example of increased scrutiny of DEI programs in the wake of the Supreme Court’s decision on Students for Fair Admissions v. Harvard, which curtailed the use of race in college admissions. Bloomberg reported that the parties reached an agreement to settle the case. The full settlement is not available but it appears the fellowship program will end with the induction of the current year’s recipients.

NLRB’s Authority to Impose Employee Remedial Orders for “Consequential” Damages Trimmed by Court of Appeals

The 3rd U.S. Circuit Court of Appeals recently trimmed the scope of permissible remedial orders granted by the NLRB to employees who win unfair labor practice cases. The appeals court drew a distinction between traditional make-whole remedies for employees who are fired as a result of an unfair labor practice and traditional back pay and reinstatement. The latter continues to be permissible, but the NLRB’s authority to order “consequential” damages for reimbursement for late credit card fees, medical expenses and the like are not permissible (NLRB v. Starbucks (3rd Cir. No. 23-1953, 12/27/24)).

As a practical matter, absent a decision on this issue by the Supreme Court, the NLRB will continue to assert its authority to render consequential damage awards, but the awards will not be enforceable in the states covered by the 3rd Circuit, which includes Delaware, New Jersey and Pennsylvania.

Hostile Work Environment Challenges to DEI Training Pass Summary Judgment Stage — First Amendment Claims Have Been Filed on Both Sides

Bloomberg reports that a number of challenges to DEI training — on the grounds that they create a hostile work environment for White employees — are surviving the summary judgment stage of initial litigation. Nonetheless, commentators conclude that most of that litigation will ultimately fail to clear the hurdle that requires the action to be “pervasive” in order to prove a hostile work environment case. Commentators also point out that the anti-DEI movement is likely to grow during the new Trump administration.

In addition to hostile work environment cases, public employees have challenged public employers under the First Amendment for forcing the employee to listen to and affirm DEI concepts. However, employers that support DEI training have successfully used the First Amendment to challenge a Florida law restricting the use of certain workplace DEI training concepts (Honeyfund.com Inc. v. Florida (11th Cir. No. 22-13135, 3/4/24)).

ACLU, NAACP and Professors Raise First and Fourteenth Amendment Challenge to Alabama Law Barring Public Funding of DEI Programs

The Alabama chapter of the American Civil Liberties Union, the NAACP, and a group of Alabama professors have filed suit in federal court, alleging that the new Alabama state law barring public funding of DEI programs violates the First and Fourteenth Amendments of the U.S. Constitution (Simon v. Ivey (N.D. Ala. No. 2:25-cv-00057, complaint 1/14/25)). The complaint alleges that the Alabama law restricts the funding of teaching “academic viewpoints” deemed to be “divisive” and prohibits funding of student groups espousing such views in violation of the First and Fourteenth Amendments.

The complaint further alleges that such viewpoint bans disproportionately affect Black students and Black faculty members. The complaint also alleges that the Alabama law violates minority students’ and professors’ right to equal protection from intentional discrimination and freedom of association under the First Amendment. The complaint further argues that the Alabama law should be struck down as “void for vagueness” under the applicable constitutional standard.

U.S. Supreme Court Eases Standard for Employers to Prove Employees Are Not Entitled to Overtime Pay

The U.S. Supreme Court rejected a heightened standard of proof needed to show that employees are exempt from the Fair Labor Standards Act overtime requirements (E.M.D. Sales v. Carrera (U.S. No. 23-217 Opinion 1/15/25)). This will make it somewhat easier for employers to show that employees are not entitled to overtime pay. The Supreme Court held in a unanimous decision written by Justice Kavanaugh that employers are subject to the regular “preponderance of the evidence” rule in proving that an employee is not subject to the applicable overtime rules rather than the higher “clear and convincing” standard.

Justice Kavanaugh concluded on behalf of a unanimous court that, where a law is silent on the applicable standard of proof, as the FLSA is, the regular preponderance of the evidence rule applies. Under this standard, an employer must show that it is more likely than not that the employee is exempt from the overtime requirements.