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:

Jury Trial Granted for Minority Professor Claiming Discriminatory Retaliation After He Was Denied a Second-Round Interview for a Dean Position and Not Allowed to Read His Protected Application Statement

A federal district court judge recently ruled in favor of a jury trial over a professor’s allegations of discriminatory retaliation after being denied a second-round interview by the university and its board of regents for a dean position. The professor claimed he was not allowed to read his application statement which allegedly criticized the university for its failure to retain women and minority scholars and noted the historic nature of his candidacy for dean.

The professor further claimed he was denied a second-round interview because of the substance of his statement, which he alleged protected activity under Title VII of the Civil Rights Act. The court rejected the university’s claims that the professor was denied a second-round interview because other applicants were better qualified. The judge ruled that the professor is entitled to a jury trial because whether the university retaliated against him because of his statement or chose allegedly more qualified candidates for the second-round interviews is a question for the jury (Alozie v. Arizona Board of Regents (2020 BL 3933, D. Ariz. No. 2:16-cv-03944, 1/7/20)).

The court ruled that denying a second-round interview is an adverse employment action protected by Title VII, and that the substance of the professor’s statement is protected activity under Title VII. While the court rejected the professor’s race discrimination claim, it let the retaliation claim move forward. The court noted that less than 24 hours passed between the professor’s submission of the statement and the denial of the second-round interview, as well as some evidence as to how some members of the interview panel reacted negatively to the submission of the written statement.

New Jersey Appellate Court Rules That Widespread Workplace Rumors About a Female Employee Can Rise to the Level of a Hostile Work Environment and Sexual Harassment

A New Jersey appellate court recently affirmed a $317,000 jury verdict under the state antidiscrimination law for a claim made by a female plaintiff that she suffered from a severe and pervasive hostile work environment that constituted sexual harassment. The plaintiff claimed she was the victim of workplace rumors that she received a promotion to her current position by sleeping with a senior official. She claimed the rumors went on for one year.

The plaintiff alleged that when she complained of sexual harassment internally, her complaints were dismissed and never pursued under the employer’s standard procedures for processing sexual harassment complaints. The trial court judge denied the employer’s motion for summary judgement and sent the case to a jury trial, noting that “a female employee would endure unique implications because of the rumored affair which a male counterpart would not.” The appellate court affirmed the jury verdict, citing support from the Third Circuit that such rumors put women in a unique position (Schiavone v. NJ Department of Corrections (2019 BL 492961, NJ Supp. Ct. Appl. Div. No. A-3963-1711, unpublished, 12/26/19)).

The appellate court affirmed the trial court’s conclusion that widespread rumors over a prolonged period of time is enough to meet the applicable standard that the conduct was related to the plaintiff’s gender and was “severe and pervasive.”

Disabled Employee’s Request for Weekend Telecommute Accommodation to Make Up Hours Lost During the Work Week for Treatment Rejected Since Paid Sick Leave Expired, Court Rules Accommodation Unnecessary to Perform Essential Elements of the Job

A West Virginia state worker who suffered from an adult onset respiratory illness caused her to leave work twice per week for treatment. The state accommodated her need for intermittent leave and allowed her to exhaust her own paid sick leave as well as a bank of donated paid sick leave. When paid sick leave expired, she was given unpaid Family and Medical Leave Act (FMLA) leave to continue intermittent treatment during work hours.

The plaintiff requested further accommodation to telecommute on the weekends to compensate for lost hours during the work week. The West Virginia state court, which applied federal Americans with Disabilities Act (ADA) standards, rejected her claim, and the plaintiff sued under the West Virginia statute that parallels the federal ADA statute (Burns v. W Virginia Department of Education and Arts (2019 BL 446478, W. Va. 18-0293, 11/20/19)).

The court held that the requested accommodation was not necessary to perform the essential elements of her job even though she was working less hours. The court also held that the state accommodated her need for intermittent leave to seek treatment during work hours and allowed her the use sick leave and supplemental paid leave until it was exhausted. Further, it was held that the state’s granting her unpaid FMLA intermittent leave was sufficient in accommodating her disability.

Gay Art Teacher May Sue in Federal Court for Being Disciplined for Showing a Picture of Her Same-Sex Partner and Future Wife to Her Class

A primary school art teacher and two-time “Teacher of the Year” was disciplined after sharing a photo of her same-sex partner and future wife to her second-grade class and telling her fourth-grade class that American painter Jasper Johns was married to a man. A federal district court judge ruled that the plaintiff may sue her public employer under the Equal Protection clause of the U.S. Constitution and that she may pursue her constitutional claim that her public employer denied her due process by disciplining her after receiving complaints from the parents of both her second- and fourth-grade students (Bailey v. Mansfield Ind. School District (2019 BL 449963, N. D. Tex., No. 3:18-cv-01161, 11/21/19)).

The federal district court judge ruled that the denial of the due process case may move forward and that denying the school district’s motion to dismiss held that the school district’s relinquishing of personnel decisions to complaining parents effectively denies due process to gay and lesbian employees.

The judge rejected the school district’s argument that parents, not teachers, have the right to decide what their children hear about sexual orientation and similar issues such as religion and politics. The plaintiff alleged that heterosexual teachers commonly share photos and discuss their families, spouses and fiancés with students in class with no repercussions. The plaintiff also argued that discussing the personal lives of famous artists like Jasper Johns is part of her holistic teaching method. She further claimed she was disciplined by being placed on administrative leave for eight weeks, pressured to resign, and then transferred to a new school where she was required to do additional work. Her case will move forward to trial.

Class-Action ERISA Pension Lawsuits Against Prominent Universities Continue to Be Settled

Since 2016, more than 20 prominent private universities have been sued in separate class-action lawsuits for pension plans they offered at high fees and “bad” (too many) investment options in violation of Employee Retirement Income Security Act (ERISA). New York University won a lawsuit that went to trial while another was dismissed in favor of the University of Pennsylvania but was revived by an appeals court. Johns Hopkins University recently became the sixth university to reach a court-approved settlement of $14 million reported by Bloomberg DLR.