The Higher Ed Workplace Blog

HR and the Courts

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

Courts Move in Different Directions in Enforcing Agreements to Arbitrate

The courts continue to move in different directions when it comes to enforcing employee agreements to arbitrate employment claims and waive the right to proceed in federal or state court to contest discharge or other adverse workplace actions, including wage and hour claims.

A federal court of appeals recently affirmed in a unanimous decision a federal district court trial judge’s dismissal of an employer’s claim that the employee had agreed to arbitrate wage and hour claims and waive her right to proceed to federal trial over her collective action regarding minimum wage and hour claims (Shockley v. Prime Lending (8th Cir., No. 18-1235, 7/15/19)).

The trial court, with appeals court approval, found that furnishing a copy of an employee handbook to employees with an arbitration provision included does not rise to the level of an enforceable contract, especially in light of the fact that the employer reserved the right to change the handbook provisions unilaterally without advance notice. Even assuming that handing the handbook to employees constituted an offer of a contract, the court held that the mere review of the handbook by employees did not constitute acceptance of the contract.

Separately, a federal district court in New York enforced a signed arbitration agreement and rejected the claim of a dyslexic employee that he did not understand the agreement due to his dyslexia. The court cited New York law, under which parties are presumed to have read and understood contracts they sign and stated that “dyslexia is not a grounds for exception to that rule” (Andre v. Mattress Firm (2019 BL 258215, SDNY No. 18CV8284, 7/12/19)).

The court pointed out that the employee had plenty of time to review the agreement before signing but contested the signing some two years after he had signed it. The court also pointed out that he could have had coworkers, his mother or his ex-common-law wife review it and explain it to him, as he had done in the past with other documents he had signed at work. The court also held that the plaintiff’s failure to exercise due diligence undercut his claim that the employer fraudulently induced him to sign the agreement.

Professor Gets Job Back as He Fights and Defends Sexual Harassment Allegations, as Court Finds He Was Denied Due Process and Terminated Without Being Given an Opportunity to Respond to or Cross Examine or Defend Against the Claims

A University of Louisville biology professor recently obtained an injunction in federal district court entitling him to reinstatement to his tenure-track teaching position while he defends against sexual harassment claims which led to his termination. The court held that the professor was denied due process and fired as a result of sexual harassment claims that were made against him and that he was not allowed reasonable notice to respond to the allegations or given an opportunity to cross examine his accusers before he was discharged (Frost v. University of Louisville (W.D. Kentucky, No., 19-CV-227, 5/29/19)).

The court concluded that the professor is likely to prevail in his denial of due process claims that once his tenure-track contract for the academic year was renewed, he had a property interest in his job during the term that could not be taken away from him without the exercise of due process. The court also recognized that the university did not provide 12 months of notice as per its written procedures. The professor was fired after hosting a potluck dinner at his home for his lab students. Four months after the event, one of the students alleged that she became drunk at the dinner and that the professor touched her inappropriately.

The university advised the professor in response to his questions concerning the termination that, “You hosted a potluck at your house during the summer in which students were invited. Alcohol was served and inappropriate touching occurred.” The court concluded that the professor was not given the opportunity to question the student who alleged the inappropriate conduct or other witnesses.

Probationary Tenure-Track Professor Loses Reverse Discrimination Claim Following Denial of Tenure and Non-Renewal of Teaching Position, as Court Holds That There Was No Constitutionally Protected Property Interest in Continued Employment 

A probationary tenure-track assistant professor who was on a year-to-year contract which conditioned each succeeding probationary year upon a satisfactory performance review recently lost her claim of reverse discrimination (Ross v. White (2019 BL 244534. C.D. Cal., No. 17-cv-04149, 7/1/19)).

She claimed that her denial of tenure and non-renewal was because the university favored Hispanics under a policy she claimed was intended to make Hispanics a majority of the university’s professors, administrators and staff. The court held that the plaintiff was unable to rebut the university’s stated reason for denial of tenure and non-renewal, which was that she was not collegial and failed to make sufficient progress toward tenure.

The plaintiff had been reappointed to a fourth probationary year but was denied tenure at the end of that year and was not reappointed for a new academic year, as her performance review was deemed unacceptable by the university. The court held that she was unable to rebut the university’s conclusions regarding her performance failures and was unable to prove that the denial of tenure and non-renewal were related to her claim that the university favored Hispanics.

The court also concluded that the plaintiff had no constitutionally protected property interest in continued employment at the university.

Title IX Suit Against a University and Its Former Football Coach for Negligently Relocating a Violent Football Player With a History of Sexual Abuse Claims and Ignoring the University’s Zero-Tolerance Policy Moves Forward in Federal Court

The University of Arizona and a former football coach were sued for Title IX violations resulting from an alleged sexual assault. The coach recently lost his motion to dismiss the lawsuit, which alleges negligence and personal liability for the alleged sexual assault (Brown v. Arizona (2019 BL 196775, D. Ariz., No. 17-cv-03536, 5/29/19)).

The complaint alleges a sexual attack by a football player who the coach had moved to an off-campus housing facility and kept on the team in violation of the university’s zero-tolerance policy. The lawsuit alleges that the coach was aware of the sexual assault history of the player and created a team culture of lax compliance with university policies regarding domestic violence and sexual assault.

In rejecting the coach’s motion to dismiss, the court held that the coach’s actions were taken under the color of state law, given the university’s public status, and involved abusing a position of trust given to the coach by the state in order to maximize the team’s success and the coach’s compensation. The plaintiff sued the university, alleging Title IX violations, negligence and emotional distress and filed an equal protection claim against the coach.

Bloomberg Survey Indicates the Number of Anonymous Workplace Harassment Lawsuits in Federal Court Has Doubled in the #MeToo Era

A recent survey by Bloomberg Law indicates that the number of anonymous lawsuits filed in 2018 doubled from previous years and is on pace this year to match or surpass the 2018 numbers.

The federal courts impose a high bar to allow a plaintiff to proceed anonymously and require a plaintiff in employment lawsuits to demonstrate exceptional circumstances in order to allow the individual to proceed under a pseudonym. The criteria the courts apply is to consider whether the issues are highly sensitive, extremely personal or create the likelihood of personal harm. Those considerations are weighed against the defendant’s right to judicial transparency and fairness.


The CUPA-HR national office will be closed July 4 in observance of Independence Day.