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:

University Volleyball Coaches Lose Age and Sexual Orientation Discrimination Termination Lawsuit

The University of Delaware’s head women’s volleyball coach (age 55) and 56-year-old associate coach (who also happened to be a married lesbian couple) were fired in the middle of the 2016 season by a new athletic director who witnessed their conduct at practices and games and concluded that they should be fired for unprofessional conduct. The coaches, hired in 2002, had led their team to win the conference championship for four consecutive years.

The athletic director had also received a complaint from the parents of one of the players alleging that their daughter was mistreated, and also took into consideration “incredibly alarming” survey responses completed by the team the previous year.

The federal judge who oversaw the case ruled that the four previous conference winning seasons proved that the coaches were qualified for the position and stated a prima facie case of discrimination. However, the judge ruled that the plaintiffs were unable to show that the university’s reasons for firing them for unprofessional conduct were either factually inaccurate or a pretext for age or sexual orientation discrimination (Kenny v. University of Delaware (2019 BL 430224. D. Del., No. 1:17-cv-01156, 11/8/19)).

Title IX Coordinator Who Claimed Retaliatory Discharge Related to an Internal Complaint She Made Within the Scope of Her Job Function Allowed to Proceed in Federal Court

The University of Cincinnati’s former Title IX coordinator, who was fired for insubordination but allowed to voluntarily resign, filed a retaliatory discharge complaint against the university for allegedly retaliating against her conduct that was arguably critical of the university’s Title IX obligations. The federal court is allowing her complaint to proceed on the grounds that she was constructively discharged and should have the right of any other university employee to be free from retaliation for raising a Title IX concern (Goldblum v. University of Cincinnati (2019 bl 453300, S.D. Ohio, No. 1:19-cv-398, 11/25/19)).

The court rejected the university’s argument that complaints made within the scope of one’s job responsibility are not protected activity under Title IX. The case involved the university giving an achievement award to a student who, unbeknownst to the university, was a convicted sex offender as a result of prior activity at another college. Students discovered that the person receiving the award was a convicted sex offender and complained to the Title IX office. The Title IX coordinator drafted a letter on the matter to send to the student newspaper and submitted it to the university before sending it. University administrators allegedly reacted angrily, telling her the letter was unsatisfactory and directed her not to submit it. She revised the letter and sent it to the student newspaper, which did not publish it. She was later told that she would be terminated for insubordination but was instead allowed to resign.

The appeals court concluded that “Title IX coordinators, who are often the best able to recognize and oppose unlawful policies, should be entitled to at least the same anti-retaliation protections as every other university employee.”

Illinois Appellate Court Rules Campus Sexual Harassment Complaint Is Not Subject to Defamation Action Even If False and Malicious

An Illinois appellate court recently ruled that sexual harassment complaints and allegations are privileged and immune from defamation actions even if false and malicious. The court reasoned that Illinois law and public policy allows alleged victims to report such allegations without fear of repercussion. The court concluded that holding otherwise would render a university’s measures for fighting sexual misconduct “toothless.” It would also require sexual harassment victims to carefully parse through their statements to avoid future defamation claims (Murauskas v. Rosa (2019 BL 438111, Ill. App. Ct. 1st Dist. 1-19-0480, 11/14/19)).

The case involved a University of Chicago campus police officer who accused another campus police officer of sexual harassment. The accused officer claimed that the plaintiff made the allegations in retaliation for him writing her up for employment infractions, that her claims were dismissed as meritless, that she refused to sign an affidavit following her initial complaint, and that she refused a follow-up interview.

Nonetheless, the court dismissed the defamation action, holding that the statements, even if false, were filed consistently with the university’s federally mandated policies and procedures for reporting and investigating sexual misconduct.

Harvard Graduate Student Union on Strike

On December 3, approximately 4,500 unionized graduate student workers at Harvard University went on strike after both sides failed to reach an agreement in negotiation. Harvard stated to the press that there was no need for the strike, as negotiation has been ongoing since October 2018.

The Harvard Graduate Student Union, affiliated with the United Auto Workers, authorized the strike presumably because it saw the possibility of losing National Labor Relations Board (NLRB) protections in 2020 as the NLRB considers an administrative rule that would not support graduate-student-union organizing. The union stated that it is seeking a 5 percent increase in wages and stipends, affordable and comprehensive healthcare, and expansion of union grievance procedures. The union is predominantly composed of doctoral students, but also includes undergraduate and professional students.

Legislation Proposed in the House to Protect Graduate-Student-Worker Unions

In November, Wisconsin Democrat Mark Pocan proposed legislation in the House of Representatives that would consider graduate-student workers as employees. The bill would oppose the NLRB’s recent push to develop a regulatory proposal that would prevent private-college graduate teachers and other student workers from organizing. The NLRB’s regulatory proposal would reverse the decision, allowing such organizing as the 2016 Columbia University case. The legislation would preserve the present status quo that the NLRB is considering by administrative action.