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:

Professor Loses First Amendment Challenge to Discipline for Refusing to Address a Transgender Student by Her Self-Asserted Gender Pronoun

A federal district court magistrate recently recommended dismissal of a professor’s First Amendment challenge to discipline (a warning letter) issued in the wake of his refusal, allegedly based on his religious beliefs as an evangelical Christian, to use the gender-related pronoun requested by a transgender student. The professor also claimed the discipline violated his free speech rights under the First Amendment (Meriwether v. Trustees of Shawnee State University (2019 BL 333389, S.D. Ohio, No. 1:18-cv-753, 9/5/19)).

Among other reasons for dismissal, the magistrate pointed out that under university policies the professor could have alternatively referred to the student by name and avoided his alleged religious conflict. The magistrate concluded that the professor’s claim must fail under the First Amendment because it did not raise a matter of “public concern.” The speech was directed only at the student involved and heard only by other students. Additionally, the magistrate pointed out that the professor’s speech related to his official job duties and he was not speaking as a private citizen.

Employee Loses ADA Claim Where Discharge Was Unrelated to His Disability

The Court of Appeals for the Ninth Circuit (covering California, Oregon, Washington, Alaska, Arizona, Nevada, Idaho and Montana) affirmed the dismissal of a morbidly obese plaintiff who filed his claim with the support of the Equal Employment Opportunity Commission. While the court held that proof of an underlying physiological condition was not necessary, contrary to the views of four other circuits, it held that the plaintiff’s case must be dismissed because he could not contradict evidence that he was fired for falsifying work records, which had nothing to do with his obesity-related disability (Valtierra v. Medtronic Inc. (9th Cir., No. 17-15292, 8/20/19)).

The plaintiff had admitted to marking 12 work assignments as completed before he went on vacation, but the work was not done. He could not show that any non-disabled employee was treated more favorably for a similar falsification of workplace records.

University Tennis Coach Wins Right to Sue Over Allegedly Flawed Sexual Harassment Investigation That Led to Termination

The Court of Appeals for the Second Circuit (covering New York, Connecticut and Vermont) reversed a federal trial court decision and granted a former Hofstra University tennis coach a trial over his allegations that the sexual harassment investigation that led to his discharge was flawed and may have resulted in a termination that discriminated against him because of his sex.

In a stern analysis, the appeals court judge held that “when universities design and implement policies to ensure the security of their students, they facilitate their sacred mission of educating the next generation. But when they distort and deviate from those policies, fearfully deferring to invidious stereotypes and crediting malicious allegations, they may violate the law” (Menaker v. Hofstra University (2nd Cir., No. 10-03089, 8/15/19)).

A female tennis player filed a sexual harassment lawsuit after the tennis coach allegedly reneged on his predecessor’s promise to increase the student’s scholarship. The court concluded that the university disregarded its own process in its investigation, failed to interview defense witnesses identified by the coach, and ignored the university vice president’s knowledge that at least one of the complainant’s allegations was false. Moreover, the court concluded that the university did not consider the complainant’s possible secondary motives of finance and revenge in analyzing the complaint and the defenses.

University Sued by EEOC for Alleged Equal Pay Act and Sex Discrimination Violations Regarding Setting of Assistant Professors’ and Full Professors’ Salaries

The Equal Employment Opportunity Commission (EEOC) recently filed suit in federal court alleging that the University of Miami violated the Equal Pay Act with regard to the setting of two political science assistant professors’ salaries and again when it promoted the male and female professors to full professor status (EEOC v. University of Miami (S.D. Fl. No. 1:19-cv-23131, complaint, 7/29/19)).

The EEOC alleged that the university paid the female assistant professor with six years of prior experience $72,500 when it hired her in 2007 and paid a male assistant professor with four years of experience $81,000 when it hired him in the same year. Both were promoted to full professor 10 years later, with the male professor earning a salary of $137,366 and the female professor earning a salary of $112,400.

The EEOC is seeking an injunction, a raise in the female professor’s salary, back wages and punitive damages.

University Is Liable to Foreign Student for Missed Job Opportunity Because It Filed the “Optional Practical Training” Recommendation Too Early

A federal district court judge recently found that a university was liable to a foreign student for his lost job opportunity after graduation because the university filed the optional practical training recommendation too early, and consequently the graduate could not take advantage of the program.

The optional practical training program allows foreign students to remain in the country and work in fields related to their study for up to three years after graduation. Because the college’s recommendation was submitted too early, the judge held that the student could not be responsible for his denial of job opportunities and that the university is responsible for the loss. The judge set a jury trial to determine the amount of the student’s actual losses (Daigic v. Misericordia University (M.D. Pa., No. 3:16-cv-00443. 7/3/19)).

Join Ira and his colleague Candace McLaren on November 7 for the virtual workshop “What’s Keeping You up at Night? Navigating Higher Ed HR’s Most Pressing Employment Law Challenges.” During this interactive workshop, Ira and Candace will offer insight and guidance on recent legal cases and issues related to HR’s role in Title IX training and investigations, mental health and workplace violence.


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