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:

Immigrant-Insensitive Social Media Post Is Insufficient Grounds for School District to Discharge Teacher Who Had Received Commendations for Inclusiveness

A California appeals court recently sided with a teacher who challenged the grounds for his discharge by the school district for his “immigrant-insensitive” social media post. The school district’s grounds for termination were rejected at the administrative hearing. The school district appealed the results, citing that the teacher’s social media post was insensitive toward immigrants. The court concluded that while the teacher’s post was inappropriate, it did not justify his termination given his teacher evaluations and commendations for inclusiveness.

On a national day of protest called, “A Day Without Immigrants,” 20 percent of the student population did not attend school. The teacher in question posted on social media, “Unfortunately, statistically my collective GPA increased today. Mostly failing students were missing.” The court recognized that the media widely reported that the teacher’s social media post was regarded by many as an “expression of racist and anti-immigrant sentiment.”

The teacher testified at the administrative hearing that he made the post to “convey his disappointment with student performance and that he never thought about racial undertones.” The court concluded that while it was troubled that the teacher did not think of the apparent connotations of his post, “thoughtlessness rather than racial sentiment animated his conduct.” This, along with the teacher’s past performance and complimentary assessments regarding inclusiveness and development of a positive learning environment, supported the conclusion at the administrative hearing that he should not be terminated (Jurupa School District v. Umberger (2020 BL 19428, Cal Ct App 4th Dist., No. D076213, unpublished, 1/21/20)).

Duquesne University Prevails in Reversing NLRB’s Certification of Adjunct Faculty’s Unionization Petition, Appeals Court Holds That the NLRB Does Not Have Jurisdiction Over Teachers at a Church-Operated School

The U.S. Court of Appeals for the D.C. Circuit recently reversed a National Labor Relations Board (NLRB) order that directed Duquesne University to recognize and bargain with the United Steelworkers Union which petitioned to represent Duquesne’s adjunct faculty (Duquesne University v. NLRB (DC Cir., No. 18-01063, 1/28/20)).

Adjunct professors at Duquesne had voted in favor of representation by the United Steelworkers in an NLRB-supervised election conducted in 2012. Duquesne had asked the NLRB to dismiss the petition because of lack of jurisdiction over the “church-run” university. The NLRB refused and the D.C. circuit intervened and concluded that Duquesne was correct in that the NLRB never had appropriate jurisdiction over the church-run school.

The D.C. circuit concluded that the NLRB erred in its decision to assert jurisdiction over Duquesne because the university “clearly satisfies the applicable test” in that it is a nonprofit school affiliated with the Catholic Church and the Spiritan Order; classifies itself as a Catholic institution; provides on-campus Catholic services; and encourages student participation in religious study groups, lectures and projects. In ruling in favor of Duquesne, the D.C. circuit cited the Supreme Court decision in the Pacific Lutheran Case holding that the NLRB does not have jurisdiction over church-run colleges and universities.

Appeals Court Affirms Harvard’s Tenure Denial of Professor Who Claimed That the Denial Was in Retaliation for Her Comments About the University Maintaining a Toxic Culture of Gender Discrimination

The U.S. Court of Appeals for the First Circuit (covering Maine, New Hampshire, Massachusetts and Rhode Island) affirmed Harvard University’s denial of tenure to an anthropology professor who claimed that the denial was in response to her statements about the university maintaining a toxic culture of gender discrimination. The plaintiff claimed that the university’s stated reason for tenure denial — her failure to maintain an appropriate level of “publication productivity” and “to make major contributions to the field of anthropology” — was a cover up of the university’s retaliation for her comments about gender discrimination (Theidon v. Harvard University (1st Cir., No. 18-1279, summary judgement affirmed, 1/31/20)).

The court ruled that many of the plaintiff’s alleged comments were made to another professor years before the tenure review and that the professor to whom she made the comments later supported her tenure bid. The court concluded that the plaintiff did not show that Harvard denied her tenure in retaliation for her comments or any other actions and that the university’s stated reasons were not a pretext to deny tenure under either Title IX or applicable Massachusetts law.

Professor and EEOC May Proceed With Gender-Based Salary Discrimination Claims Under Both Title VII and Equal Pay Act

The Federal District Court for the Southern District of Florida rejected the University of Miami’s motion for summary judgement, holding that the Equal Employment Opportunity Commission (EEOC) and a female professor adequately stated a claim of gender-based salary discrimination between her and a male political science professor under both Title VII and the Equal Pay Act (EEOC v. University of Miami (2019 BL 462355, S.D. Fla., No. 19-23131, 12/3/19)). The court held that as long as the allegations state that the male and female professors perform “equal work” rather than “identical work,” the allegations can move forward under both statutes. The court also pointed out that the action was properly pleaded under both laws and that the Title VII standard of “similarly situated” is a more relaxed standard than that of the Equal Pay Act.

In this case, the plaintiff discovered that she was paid $25,000 less per year than a male professor, even though she had two more years of teaching experience, including seven years of experience at the University of Miami. Moreover, the plaintiff alleged that she published a book three years before her male counterpart did and that she published more articles than him. Both professors were promoted to full professor at the same time by the same committee, though the male professor’s salary was $25,000 more than the female professor’s salary. The case will move forward.

Termination of Public Employee Who Wrote Book Recounting Prior Experiences as a Phone-Sex Operator Constitutes Unlawful First Amendment Retaliatory Discharge

The U.S. Court of Appeals for the Seventh Circuit (covering Wisconsin, Illinois and Indiana) affirmed the trial court holding that VISTA unlawfully retaliated against an employee in violation of the First Amendment. VISTA fired an employee who published a book unrelated to her current job about her prior experience as a phone-sex operator. The court rejected VISTA’s argument that the book, which recounted conversations with “deviants” who fanaticized about sex abuse, brought disrepute on VISTA. The court concluded that VISTA provided no evidence supporting the disrepute argument (Harnishfeger v. United States (VISTA) (2019BL 462048, 7th Cir., No. 18-1865, 12/3/19)).

In reversing the trial court’s ruling rejecting the plaintiff’s claims, the court of appeals held that the book in question was protected free speech because it was not work-related and was written for a general audience on a matter of public concern.

Join Ira and his colleague Candace McLaren on March 12 for the virtual workshop “Navigating Higher Ed HR’s Most Pressing Employment Law Challenges — Spring 2020 Edition.” During this interactive workshop, Ira and Candace will offer insight and guidance on recent legal cases and issues that affect higher ed. 


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