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 - October 19, 2016
October 19, 2016

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

Professor’s LGBT Rights Under Title VII to Be Reargued and Reheard by Full Seventh Circuit Court of Appeals Sitting En Banc

The continuing legal dispute over whether LGBT employees are protected against discrimination under federal law by Title VII of the Civil Rights Act of 1964 as amended will be reheard and reargued before the full Seventh Circuit U.S. Court of Appeals (Hively v. Ivy Tech Community College (7th Cir., No. 15-1720, rehearing en banc ordered 10/11/16)).

A three-judge panel of the Seventh Circuit in July rejected the appeal by the plaintiff, holding that Title VII does not cover or protect LGBT employees because sexual orientation is not a protected class under the statute. The argument will be held before all of the Seventh Circuit judges on November 30.

Congress has refused to amend Title VII to specifically cover LGBT employees in the past. The same issue is pending before the courts of appeals for the Second and Eleventh Circuits. The U.S. Supreme Court may ultimately decide the dispute. The EEOC since 2015 has taken the position that Title VII’s prohibition of sex discrimination includes sexual orientation bias, and therefore LGBT employees are protected from discrimination. The prior Seventh Circuit three-judge panel rejected the EEOC reasoning. The plaintiff in this case has asserted that she was discriminated against because she is a lesbian.

U.S. Supreme Court Rejects Extending ADA Discrimination Protection to Obesity

The U.S. Supreme Court recently declined to review the appeal of a rejected job applicant’s claim that his discrimination claim should be covered under the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission had argued that the plaintiff’s contentions that morbid obesity should be covered under the ADA should be accepted and the decision of the lower court should be reversed. However, the Supreme Court rejected the EEOC’s arguments in refusing to hear the case and letting the lower court decision stand (Morris v. BNSF Railway Co. (US, No 16-233, cert denied, 10/3/16)).

The U.S. Court of Appeals for the First Circuit had previously ruled under the Rehab Act, which is similar to the ADA, that morbid obesity is covered and protected. The plaintiff argued that the Supreme Court should step in and resolve this alleged conflict in the circuits; however, the Supreme Court declined without comment to address the issue under the ADA.

NLRB Rules That Northwestern University Will Not Face Unfair Labor Practice Charge Regarding Its Football Players

The National Labor Relations Board (NLRB) decided in a 5-0 decision in 2015 to block unionization of Northwestern University football players, holding that certifying a union among college football players would not promote stable collective bargaining under the National Labor Relations Act (NLRA). However, the NLRB did not decide at the time whether the student football players were employees under the statute.

Nonetheless, recently, the NLRB’s Division of Advice (of the General Counsel’s Office) issued a ruling that assumed that the football players were employees under the statute. However, the Division of Advice refused to go further in recommending against the issuance of an unfair labor practice complaint against the university for allegedly violating the players’ rights by restricting their rights to discuss “workplace issues” under the university’s social media policy.

The Division of Advice ruled in favor of the university, holding that it had amended the social media policy as it applies to its student athletes (NLRB Div. of Advice, No. Case 13-CA-157467, 9/22/16)). Therefore, neither the NLRB nor its General Counsel office has decided whether scholarship athletes are employees under the NLRA.

Harvard Food Service Workers Represented by UNITE HERE Local 26 Continue Strike

Hundreds of Harvard University dining workers continued their strike against the university, as federal mediation has not yet been successful in bringing the sides together on agreement to a labor contract. UNITE HERE Local 26 represents approximately 750 dining hall workers at the university. The union is seeking a labor contract which provides “affordable health insurance” for workers and sets a minimum annual wage of $35,000. The talks have been ongoing since May, and the strike marked its two-week mark on October 19.  

Prominent Universities Sued for Alleged ERISA Fiduciary Responsibility Violations Defend and Ask That the Lawsuits Be Dismissed

Twelve prominent colleges and universities were targeted over a nine-day period in August with class action ERISA lawsuits alleging violation of fiduciary responsibility because they offered too many investment alternatives to employees, because of the selection of certain investment alternatives, and amidst allegations that the fees charged by service providers are excessive. In early October, six of the institutions — Johns Hopkins, Duke, MIT, Vanderbilt, Emory and Cornell — filed motions to dismiss the lawsuits.

The schools have argued a variety of theories as to why the suits should be dismissed, including precedent in the Seventh Circuit which approved a retirement plan which offered 2,500 investment options — far more than these schools offer. One of the more interesting arguments is that ERISA imposes a fiduciary standard of “what like fiduciaries do or decide under like circumstances.” One school has claimed that the allegations that 12 leading universities in the country all acted imprudently when making similar decisions evidences the implausibility of these claims.