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 - January 13, 2016
January 13, 2016

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

Arbitration Award Reinstating Professor Fired for “Moral Turpitude” Overturned by State Supreme Court

The Supreme Court of the State of New Hampshire recently overturned an adverse arbitration award reinstating a former University of New Hampshire professor and department chair, siding with the university which had fired the professor for “moral turpitude” as a result of his altering evaluations students gave a lecturer (University System of New Hampshire v. Dorfsman (2015 BL 422120, N.H. No. 2015-0187, 12/23/15)).

The professor and his union challenged his termination under the applicable collective bargaining agreement which enumerated “moral turpitude” as a proper grounds for termination. At arbitration, the arbitrator found that the professor’s actions in altering student evaluations of a lecturer constituted “moral turpitude,” holding that he committed an act which is enumerated under the collective bargaining agreement as grounds for termination. Nonetheless, the arbitrator went on to hold that “mitigating circumstances” weighed in favor of the professor’s reinstatement.

The university appealed the adverse arbitration award, arguing that the arbitrator exceeded his authority under the collective bargaining agreement by reinstating the professor. The university argued successfully that once the arbitrator found the professor had committed an act which is enumerated as a cause for discharge under the arbitration agreement, the arbitrator had no choice but to sustain the termination under the labor contract. To do otherwise constituted a violation of the labor contract in excess of the arbitrator’s authority. The New Hampshire Supreme Court agreed with the university, holding that the arbitrator did exceed his authority under the collective bargaining agreement.

The court repeated the famous conclusion of the United States Supreme Court in the “steelworkers trilogy” of cases handed down 45 years ago which define an arbitrator’s authority, which is that an arbitrator is bound by the terms of the collective bargaining agreement and cannot alter those terms in favor of “dispensing his own brand of industrial justice.” Here, the arbitrator found that the professor committed an act of moral turpitude and once making that finding, under the applicable collective bargaining agreement, the arbitrator had no choice but to sustain the discharge. The collective bargaining agreement did not give the arbitrator authority to compromise a stated grounds for termination because of “mitigating circumstances.”

The court held that the arbitrator ignored the plain language of the contract. The professor did not contest that his actions constituted “moral turpitude,” but he argued that the arbitrator was entitled to apply mitigating circumstances to his discharge because the contract stated that moral turpitude “may” be grounds for termination instead of “shall” be grounds for termination. The court rejected the professor’s argument in ruling for the university.

Three Former Women’s Program Athletic Trainers Settle Sex Discrimination and Retaliation Complaints for $750,000 in Damages Plus Attorney Fees

Three former athletic trainers (one male and two female) associated with the former women’s program at the University of Tennessee filed a settlement agreement in federal district court covering their sex discrimination and retaliation claims. They are slated to receive $750,000 plus attorney fees (the total settlement will likely exceed $1 million). The settlement agreement, which is pending court approval, covers complete settlement of the sex discrimination claims brought by the university’s former associate director of sports medicine (a female) and two former strength coaches (one male and one female) (Schlosser v. University of Tennessee (E.D. Tenn. No. 12-00534, settlement filed 1/4/16)). The individual payments to the three plaintiffs range from $127,500 to $345,000. The university stated that it was settling the matter in the long-term interests of the university and specifically denied any admission of liability.

The plaintiffs complained that after the merger of the men’s and women’s athletic programs into a consolidated program in 2009, those associated with the women’s program were paid less than those associated with the men’s program. The male plaintiff alleged that he was terminated in a reduction of force, unlawfully, after he raised the complaint internally. The two female plaintiffs alleged that they were demoted unlawfully after raising their complaints internally.

Non-Disabled Employee States ADA “Associational” Discrimination Claim Based on Wife’s Disability

A federal district court judge recently denied summary judgement to an employer, allowing the complaint to proceed based on an employee’s claim that he was terminated because of his wife’s disability on the belief that it would cause him to miss work often and/or have an erratic attendance record (Pollere v. USIG Pa. Inc. (2015 BL 417052, E.D. Pa. No. 2:-cv-02421, 12/18/15)).

The “associational” protections of the ADA prohibit an employer from discriminating against a qualified employee because of an association with a disabled individual. While the ADA associational provisions do not require the employer to enter into a discussion of accommodation or provide any accommodation to an individual associated with a disabled individual, the employer must not discriminate against the employee because of the association.

In order to establish a prima facie case of associational discrimination, the plaintiff must put forward evidence that the employer knew of the employee’s association with a disabled person and that it could be reasonably inferred that this association lead to an adverse employment action.

In this case, the employer was aware of the employee’s wife’s disability, and the employee was terminated after coming back from FMLA leave to care for both himself and his wife. He provided a doctor’s note substantiating his own medical problem, but the employer terminated him anyway. The judge ruled that a jury could infer from these facts that the employer became frustrated with his attendance record and fired him because of likely future attendance problems related at least in part to his wife’s disability.

Federal Court Holds That Creating a New Job Is Not a Required ADA Accommodation, Nor Is the Elimination of One of a Job’s Essential Functions

A federal district court recently underlined in dismissing an ADA discrimination case that the ADA does not require an employer to create a new job for an employee as part of the accommodation process, nor does it require an employer to modify or eliminate any of a job’s essential functions.

The case involved an employee with a post-traumatic stress syndrome disability who requested her position at a retail bank be modified so that she did not have to have contact with the public. The court ruled that such an accommodation amounted to having the employer create a new job, as contact with the public was an essential job function of her existing job (Posteraro v. RBS Citizens N.A. (2015 BL 429660. D.N.H., No. 10-416, 12/29/15)).

The court observed that public interaction was an essential element of the plaintiff’s job and that her employer was correct in arguing that is not required to eliminate an essential job function as part of the ADA’s required interactive accommodation process.

Tenured Faculty at Boston-Area University Seeking SEIU Representation

The Service Employees International Union (SEIU) Local 509 has filed a representation petition with the NLRB to represent a unit of 49 Tufts University Medical School faculty. According to the SEIU, this represents the first time that tenured faculty are seeking union representation in the Boston area. SEIU Local 509 currently represents adjunct faculty members at several universities in the Boston area, including Bentley University, Boston University, Lesley University, Northeastern University and Tufts University