Legal Watch - July 29, 2015
July 29, 2015

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

Hostile Work Environment, Sexual Harassment Claim Brought by Transgender Professor Allowed to Proceed on the Basis of “Presented” Gender

A male-to-female transgender professor’s hostile work environment/sexual harassment complaint has been allowed to proceed based on presented gender, and the university’s motion to dismiss was denied by a federal district court judge (U.S. DOJ v. Southeast Oklahoma State University (2015 BL 221060, W.D. Okla., No. 5:15-cv-00324, 7/10/15)).

The U.S. Department of Justice sued in this case, alleging that the transgender professor was denied promotion to a tenured position, despite receiving positive recommendations from the department and other tenured faculty, because of her gender identity, gender transition and non-conformance with gender stereotypes. The professor intervened in this lawsuit to add a hostile work environment/sexual harassment complaint, which the judge ruled was properly stated.

The professor claimed as part of her hostile work environment claim that she was forced for four years to use a specific single-stall, all-gender restroom for persons with disabilities which was located on a floor different from her office as opposed to the multi-stall women’s restroom located on her floor. She also alleged that she was explicitly excluded from participating in the university’s health insurance plan and counseled against wearing short skirts. Finally, she alleged that she was warned to take safety precautions against people who were openly hostile to transgender individuals and was told that the vice president of academic affairs considered transgender people to be a “grave offense to his (religious) sensibilities.”

The federal district judge ruled that the professor’s allegations were properly allowed to proceed under Title VII as harassment because of transgender status, rather than dislike of presented gender.    

U.S. Supreme Court Grants Cert to Review Whether Public Employee Unions’ Mandatory “Agency Fees,” Paid by Nonmembers, Violate the First Amendment

The U.S. Supreme Court granted the petition of a group of California public school teachers who, as non-union members, object to the mandatory payment of “agency fees” to the union that represents them in collective bargaining (Friedrichs v. California Teachers Association U.S. No. 14-915, cert. granted, 6/30/15)).

The nation’s highest court agreed to review the decision of the Ninth Circuit Court of Appeals, which ruled consistent with the federal trial court that California state laws requiring non-union-member teachers to contribute to a union’s bargaining, grievance adjustment and contract administration costs (agency fees) do not violate the First Amendment because non-union members are not forced to contribute to the union’s political activities.

The Supreme Court will consider whether to overturn almost 40 years of precedent and reconsider its 1977 decision in Abood v. Detroit Board of Education (431 U.S. 207), which held that such “agency shop arrangements in the public sector pass First Amendment muster if nonmember fees do not go toward union political activity but rather to pay for the collective bargaining grievance administration and contract administration services the union provides members and nonmembers.” A reversal of this precedent could land a serious blow to the financial stability of public-sector unions.

State and Local Roundup: NYC Bans Pre-Offer Background Checks, D.C. Suburb Requires All Local Employers to Provide Up to Seven Days of Paid Sick Leave Per Year

The mayor of New York City recently signed into law the “Fair Chance Act,” which prohibits NYC employers from conducting pre-offer background and criminal checks on applicants. Only after a conditional offer of employment can such checks be made. The law exempts employers hiring for positions for which federal, state or local law requires a background check or where criminal backgrounds serve as a bar to employment in the position. Further, certain law enforcement positions will not be subject to the law. New York City joins more than 17 states and more than 100 cities that have some kind of “fair chance” law barring criminal background checks before an offer of employment is made.

In other news, employers in Montgomery County, Maryland (a close-in suburb of Washington, D.C. and the state’s most populous county) will be required to provide employees with up to seven days of paid sick leave a year under a new law recently signed by the county executive. The law takes effect on October 1 of this year. Labor Secretary Tom Perez attended the signing ceremony and stated it is a matter of “when” not “if” the federal government will enact such employer-mandated paid sick leave.