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 - December 16, 2015
December 16, 2015

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

Professor’s Request for a Preliminary Junction Hearing to End Termination Proceedings and Reinstate Him, Separate From Trial Over His Pending Discrimination Claims, Denied by Court of Appeals

The United States Court of Appeals for the First Circuit recently upheld a federal trial court’s decision combining a professor’s trial over his discrimination allegations under the Civil Rights Act of 1871 and First Amendment claims with his separate request for an injunction to end the termination proceedings against him and reinstate him. The appeals court denied the professor’s appeal, with his discrimination claim still pending at the summary judgement stage, holding it had no jurisdiction to hear the appeal because he did not show that he could not get the requested relief as part of his underlying race discrimination claim (Nwaubani v. Grossman (2015 BL 388604, 1st Cir, No. 14-2250, 11/25/15)).

The plaintiff had served as director of the University of Massachusetts at Dartmouth’s African American Studies program and was being terminated for performance issues when he amended his underlying discrimination claim against the university. The termination was completed while the underlying litigation was pending. The university had filed a motion to dismiss. The court of appeals in denying his request for a separate preliminary injunction hearing recognized that he was not prejudiced by the combining of the hearings because whatever injunctive relief he requested would still be available to him in his underlying litigation should he be successful.

Court Rules That Applicants Can Bring Disparate Impact Claims Under ADEA

In a case of first impression for the United States Court of Appeals for the Eleventh Circuit, the court ruled that applicants, in addition to employees, can bring age discrimination claims under the disparate impact theory. The dissent pointed out that the majority decision conflicts with three other circuit courts of appeals (the Seventh, Eighth and Tenth Circuits) that have held that disparate impact claims under the Age Discrimination in Employment Act can only be brought by employees because of the unique wording of the Act, which is different than Title VII (Villarreal v. R.J. Reynolds Tobacco Co. (2015 BL 391522, 11th Cir. No. 15-10602, 11/30/15)).

EEOC regulations support the application of the disparate impact theory to applicants in age cases, and the court of appeals recognized that the EEOC is the federal agency charged with interpreting the Act. Further, the court observed that the defendant’s hiring statistics “suggest a pattern of hiring younger applicants.” The court pointed to a record showing that between September 2007 and July 2010, of the 1,024 people hired as territory managers, only 19 were over age 40.

Coworkers’ Occasional Sexual Banter Not Enough to Sustain a Sexual Harassment, Hostile Environment Claim

A federal district court judge in New York dismissed a plaintiff’s sexual harassment, hostile environment claim, which was based on coworkers’ alleged comments about the plaintiff’s body and their more frequent discussion of female customers’ bodies. The judge ruled in favor of the employer, holding that the alleged comments, which were accepted as true for purposes of the summary judgement motion, did not meet the applicable standard of being “continuous and pervasive” (Saile v. NY State Department of Motor Vehicles (2015 BL 370021, NDNY No., 5:13-cv-01394, 11/9/15)).

The plaintiff alleged that two of her coworkers had commented on her “upper physique,” and they more frequently discussed female customers’ bodies and tried to pull other colleagues into the discussions. Nonetheless, at deposition the plaintiff could not recall a specific incident of such comments as they related to her. The judge concluded that her inability to remember a single specific incident of comments that related to her body called into question how severe the comments were.

The judge concluded that occasional “vulgar banter” and “coarse or boorish workers” are not enough to fall into Title VII proscriptions regarding sexual harassment and the fact that an occasional comment may “have made the plaintiff uncomfortable” does not create an abusive or hostile work environment.

Maximum Experience Job Description Held a Proxy for Age Discrimination – Applicant’s Claim Allowed to Proceed

A federal district court judge recently ruled in favor of a 59-year-old attorney who applied for a “senior counsel” position where the prospective employer declined to interview him because his experience far exceeded the maximum experience requirement in the company’s job description (Kleber v. CareFusion Corp. (2015 BL 385212, ND ILL., No. 1:15-cv-01994, 11/23/15)).

The prospective employer maintained a job description for the senior counsel position of “three to seven years” of experience and declined to interview the plaintiff because he had well more than seven years of experience. The federal trial court judge held in dismissing the employer’s motion for summary judgement that the plaintiff stated a claim of age discrimination which should go to a jury on the theory that the company’s job description may have used “experience” as a “proxy for age,” in violation of the Age Discrimination in Employment Act. The court ruled that the plaintiff has a right to proceed to a jury trial under the disparate treatment theory that the job description’s mandatory experience requirement was used to discriminate against the plaintiff on the basis of his age.

Labor Organizing Roundup

University of Chicago Non-Tenure-Track Faculty Choose SEIU to Represent Them
The Service Employees International Union (SEIU) won an NLRB-supervised representation election which covers a unit of 169 non-tenure-track faculty at the University of Chicago. The faculty members voted 96 to 22 in favor of representation by Local 73 of the SEIU. The university stated it would enter into negotiations with the SEIU over a collective bargaining agreement covering the professors.

Adjunct Faculty at NYU Engineering School to Vote in Mail Ballot Election on Whether to be Represented by UAW
The United Auto Workers (UAW) already represents some 3,500 adjunct faculty at other parts of New York University. NYU acquired Brooklyn Polytechnic Institute in 2008 and in 2014 merged it into the operations of the Tandon School of Engineering. The NLRB is conducting a mail ballot election for the Tandon School unit of 240 adjunct professors concerning UAW representation. The ballots will be counted on December 21.

Temple University Adjuncts Choose AFT Affiliate to Represent Them
An adjunct faculty unit of approximately 1,400 professors at Temple University chose an affiliate (TAUP) of the American Federation of Teachers to represent them. The adjunct faculty voted 609 to 266 in favor of TAUP representation in an election supervised by the Pennsylvania labor board.

USC Non-Tenure-Track Faculty Seek Representation Election
SEIU Local 721 has filed a representation petition with the NLRB seeking an election over representation of a unit of approximately 500 non-tenure-track faculty at University of Southern California. The SEIU Local has had recent success in the Los Angeles area in winning representation elections to represent adjunct faculty at Otis College of Art and Design and Whittier College.