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Advocacy & Compliance News

Legal Watch – June 18, 2014
June 18, 2014

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP


Basketball Coach Who Reported Athletic Director’s Affair With Another Coach Loses Sexual Harassment and Whistleblower Claims

The federal district court for the district of Michigan dismissed on summary judgment the sexual harassment and whistleblower retaliation claims brought by a former assistant basketball coach who alleged preferential treatment by the university’s athletic director of an assistant coach with whom the athletic director was having an affair. The court found that the underlying allegation of favoritism cannot be the basis of an actionable hostile environment sexual harassment case, citing the overwhelming majority of federal case law precedent which holds that “preferential treatment of a consensual sexual partner cannot be the basis of an actionable hostile work environment case under Title VII” (Briggs v. University of Detroit-Mercy 2014 BL 146275 (ED Mich. No. 2:13-cv-12583, 5/27/14)).

The court pointed out that only the federal district court in Washington, D.C., allows the claim of preferential treatment resulting from a supervisor’s consensual affair with a subordinate to go forward under Title VII. With that exception, the “vast majority” of federal district courts have found that no Title VII hostile environment cause of action exists under like circumstances. This court declined to follow the lone precedent of the D.C. court. Accordingly, the court found that there can be no Title VII retaliation claim for reporting the conduct where the court ruled that the reported conduct did not rise to the level of a valid Title VII claim.

The court concluded that the plaintiff’s claim of sex discrimination and/or sexism was closer to a claim of nepotism, which is not actionable under Title VII. The court also dismissed the plaintiff’s claim under the state Whistleblower Protection Act because the conduct did not qualify for protection under the Act, as the plaintiff’s conduct did not involve reporting an “unlawful act.”


Supreme Court Affirms Dismissal of Guidance Counselor’s First Amendment Free Speech Lawsuit After Publishing “Hyper Sexualized” Adult Relationship Book

The United States Supreme Court denied to review the Seventh Circuit Court of Appeals’ dismissal of a guidance counselor’s first amendment free speech lawsuit filed after his termination which came after community members complained about him continuing in his position as guidance counselor and girls’ basketball coach following publication of a book which contained “adult advice” (Craig v. Rich Township Dist. (227 US No. 13-1084, cert denied 5/19/14)).

Unlike other cases where a plaintiff’s book or writings were completely unrelated to his or her job and the subject of independent public concern, the defendant pointed out that here the plaintiff took affirmative steps to link the book to his employment by dedicating the book to his students and referencing his credentials as a high school guidance counselor and girls’ basketball coach.

The Supreme Court affirmed the Seventh Circuit’s reasoning in dismissing the plaintiff’s claim, which was that his claimed first amendment interest in publishing the book was dwarfed by the school district’s interest in protecting the integrity of high school counseling services.


University’s Refusal to Enhance Maximum Paid Leave Policy With Unpaid Leave for Faculty Member With Cancer Is Neither a Rehab Act Violation Nor a Denial of Reasonable Accommodation

The United States Court of Appeals for the Tenth Circuit recently affirmed the trial court’s dismissal of a Rehab Act claim brought against Kansas State University by a faculty member who requested and was denied an extension of the university’s six-month maximum paid leave policy. The faculty member requested the extension of paid leave with unpaid leave as a reasonable accommodation for her cancer recovery. The Seventh Circuit rejected the claim, holding that requiring an employer to keep a job open for so long does not amount to a reasonable accommodation (Hwang v. Kansas State University (2014 BL 149587, 10th Cir, No. 13-3070, 5/29/14)).

The appeals court concluded, “After all, reasonable accommodation — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.” The court also concluded that, “It perhaps goes without saying that an employee who is not capable of working for so long is not an employee capable of performing the job’s essential functions …”


SEIU Continues Coast-to-Coast Organization of Adjunct Faculty

Adjunct professors at two private higher education institutions in the San Francisco area have voted for the Service Employees International Union (SEIU) to be their collective bargaining representative and to begin labor negotiations at their institutions. Adjunct faculty at the San Francisco Art Institute voted in favor of representation by SEIU Local 1021 on May 30 by a vote of 124-35. Earlier in May, approximately 138 instructors at Mills College in Oakland voted 78 percent in favor of SEIU Local 1021 representation at an election supervised by the NLRB.

Separately, across the country in the Boston area, a unit composed of 923 adjuncts at Northeastern University voted 323-286 in favor of SEIU representation in a mid-May election, also supervised by the NLRB. The Northeastern election is the third victory by the SEIU in the Boston area in the last seven months, following recent victories at Lesley University and Tufts University.


Age-Related Remarks Support Prima Facie Case of Age Discrimination

A federal district court in Philadelphia refused to dismiss an age discrimination lawsuit on summary judgment, citing evidence of age-related comments by the supervisor involved in the termination as supporting a prima facie case of age discrimination. The plaintiff alleged that his supervisor referred to his position in a group meeting some time prior to his termination as “normally for young college graduates.” Moreover, the supervisor was alleged to have said to the plaintiff prior to his termination that he was not right for the job as he was 52 years old (Karbo v. Philadelphia Corporation for the Aging (ED Pa. No. 2:13-cv-01216, 4/22/14)).

The court held that because the comments were made just “a few months before” the plaintiff’s discharge by the supervisor, who was involved in the decision to discharge the plaintiff, the comments might be more than stray remarks and it is a jury question as to whether age discrimination occurred. Moreover, the plaintiff alleged that he was replaced by a 28-year-old employee.