Washington Updates

View the archive.

Washington Insider Alerts

View the Insider Alert archive.

Public Policy Committee

The Public Policy Committee recommends to the board of directors positions and priorities on legislative and regulatory issues impacting CUPA-HR members. View the association’s current Public Policy Statement.

Advocacy & Compliance News

Legal Watch - August 21, 2014
August 21, 2014

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

Professor’s Political Discrimination Claims to be Retried Before a Jury Under the Civil Rights Act of 1871

A court of appeals recently ruled that a lawsuit filed by a “conservative,” part-time, law school professor who alleged she was discriminated against in her application for a full-time professorship because of the law school’s “liberal bias” is entitled to a new jury trial under the Civil Rights Act of 1871 (42 USC 1983). The part-time professor alleged that the Act prohibits public institutions from violating the First Amendment and due process rights of employees and applicants who are discriminated against as a result of their political beliefs. The Court of Appeals for the Eighth Circuit agreed, and held that the plaintiff is entitled to a new jury trial because the judge erred in amending his mistrial decision after declaring a mistrial (Wagner v. Jones (2014 BL 196034, 8th Cir., no. 13-1650, 7/15/)).

The case was brought by a part-time professor against the dean of the law school and was initially dismissed on immunity grounds. The court of appeals reversed the dismissal and it went to a jury, which was deadlocked. The trial judge declared a mistrial and shortly thereafter reversed his mistrial decision. The court of appeals held that that was an error, and the plaintiff is entitled to a new jury trial.

The plaintiff was a registered Republican who publicly and actively advocated conservative causes. She also held active and public anti-abortion views. Out of the 50 candidates who applied for the full-time professorship, she was one of five selected for a second round of interviews. She received positive comments from students and from some faculty members. However, the faculty recommended, with the dean’s approval, a more liberal candidate with less teaching experience. According to the court, only one professor at the law school at the time was a registered Republican.

We covered this case initially and cover it again because of the little known protection against “political discrimination” by public institutions accorded by the Civil Rights Act of 1871. This protection is not available or applicable to private employers under the Civil Rights Act of 1964 (Title VII) as amended.

Federal District Court Judge Dismisses ADA Claim, Holding That “Frequent Urination,” While an ADA Impairment, Does Not Limit a Major Life Activity

A federal district court judge recently found that a plaintiff’s need for frequent urination caused by prescription medication she was taking as a result of a recent heart attack was an ADA impairment, but that it did not rise to the level of protection as a disability because it did not limit any of the plaintiff’s major life activities, in this case either walking or thinking (Sanders v.Judson Center Inc. (2014 BL 217924, ED Mich., No. 5:13-cv-12090, 8/6/14)).

The plaintiff in this case was a job coach for disabled individuals who was required to always be with her disabled customers during her shift, and if she needed to leave, she was required to make sure that another staff person was available to be there. She was terminated as a result of an incident in which she left two individuals unattended in a van during her shift while she went to the restroom. In discussing work standards and rules with the plaintiff prior to the incident, the plaintiff disclosed that she from time to time had to go to the restroom urgently as a result of the medication. Her supervisor told her in such circumstances she either must take the customer with her to the restroom or get another staff member to watch the customer.

The federal district court judge recognized that impairments caused by medications can rise to the level of ADA-protected impairments even where the impairment was not related to the underlying condition. The judge went on to conclude that in this case the impairment, frequent urination, was not protected by the ADA because the plaintiff failed to prove that the impairment affected a major life condition, as she alleged, of walking, standing or thinking. The judge rejected her claim that her need to urinate was so severe that it precluded her from “focusing” on the job as insufficient to prove a limitation on the major life activity of “thinking.”

Religious Discrimination Claim by Aide Who Refused to Pray With Patient Rejected by Federal Appeals Court

The U.S. Court of Appeals for the Fifth Circuit reversed a jury verdict and damages in favor of a former nursing home aide who was terminated for refusing to pray the rosary per a patient’s request (Nobach v. Woodland Village Nursing Center (2014 BL 220013, 5th Cir., 13-60378, 8/7/14)). The plaintiff claimed, after she was fired, that she is a former Jehovah’s Witness who still observes the faith’s call to refrain from saying repetitive prayers like the rosary. The nursing home claimed it was part of her job duties and a standard work rule that aides routinely repeat the rosary with patients who request their assistance in doing so. The nursing center defended its decision, stating that the plaintiff was aware of the work rule and never objected or raised her religious beliefs prior to the incident. It was only after she was terminated that she raised the religious discrimination claim.

The court of appeals in reversing the jury verdict in the plaintiff’s favor concluded that the nursing center was unaware of the plaintiff’s alleged religious beliefs when it discharged her for insubordination. The court concluded that there was no evidentiary basis for a reasonable jury to conclude that the employer was aware of the plaintiff’s conflicting religious beliefs when it made the decision to discharge her. In coming to its conclusions and ruling against the plaintiff, the appeals court also recognized that the plaintiff had worked for the nursing center for only 13 months and had already been written up five times. She had previously been written up for making a false accusation against a coworker, for stealing a resident’s nail polish, and twice for continued tardiness. The court of appeals cited other circuits’ precedent that an employer is under no obligation under Title VII to withdraw a termination decision based on information supplied after the termination decision has been made.

SEIU Continues Aggressive Adjunct Unionization Campaign Across the Country With Mixed Results

The Service Employees International Union (SEIU) continues its aggressive nationwide campaign aimed at unionizing adjunct faculty. The campaign, which began in large cities in the east including Washington, D.C. and Boston, and spread to the west, including Los Angeles, has in July resulted in two elections, one in Minnesota and one in Washington State.

Adjunct professors at the University of St. Thomas in St. Paul, Minnesota, rejected unionization by a vote of 136 to 84 just weeks after adjuncts at Hamline University in St. Paul voted in favor of SEIU representation. Adjunct faculty members in a small unit at Antioch University in Seattle, Washington, came to an opposite result in voting overwhelmingly (85 to 14) in favor of representation by the SEIU.

Adjunct faculty votes at two other Seattle-area universities were impounded by the NLRB pending a decision from the NLRB in Washington on objections raised by both sides. The universities affected by the NLRB’s impoundment of ballots are Pacific Lutheran University and Seattle University.