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:

Employer’s Defense of a Female Employee’s Equal Pay Act Claim of Gender Discrimination and Unlawful Salary Differential Between Male and Female Workers Rejected, Case to be Reviewed by Supreme Court

The Court of Appeals for the Ninth Circuit (covering California, Oregon, Washington, Arizona, Nevada, Idaho and Montana), sitting en banc, recently rejected an employer’s defense of pre-employment salary history as a reason to pay a female employee less than a male employee. The female employee claimed gender-based salary discrimination under the Equal Pay Act and held that her salary history at her previous job justified her current salary.

The court agreed with the female employee, holding that “salary history” regarding pay for former jobs is “not a factor other than sex” that can be relied upon as a defense in Equal Pay Act litigation. The court ruled that prior pay for a different, prior job is simply not related to the current position and can be used to perpetuate gender-based salary discrimination (Rizo v. Yovino (9th Cir., no. 16-15372, en banc 2/27/20)).

The court reasoned that prior pay is not job-related for purposes of the Equal Pay Act because it pertains to compensation the worker received for a different job. The Second Circuit (covering New York, Vermont and Connecticut), Fourth Circuit (covering Maryland, Virginia, West Virginia and North and South Carolina), and Tenth Circuit (covering Colorado, Utah, Wyoming, Kansas and Oklahoma) all agree. Only the Seventh Circuit (covering Illinois, Wisconsin and Indiana) held that prior job history may be a defense in an Equal Pay Act claim. This split in the circuits makes the case suitable for review by the Supreme Court.

It is notable that California is one of several states and cities that have, by state or local law, banned the use of prior salary history as a defense to state and local gender-based salary sex-discrimination claims.

Educators’ Support of a Disabled Student’s Accommodation Request for Standardized Test Ruled Part of Educators’ Job Function, Not Protected Free Speech

The U.S. Court of Appeals for the Fifth Circuit (covering Texas, Louisiana and Mississippi) recently rejected the First Amendment claims of two educators: a teacher and a principal’s assistant whose job functions were to administer standardized tests. Both complained that the school district violated the rights of a disabled student who had ADHD and learning disabilities by not offering the student the option to take the standardized test orally. Both educators were fired by the school district for their actions.

The court ruled that the educators did not have a First Amendment right to speak out on the topic since it was part of their job functions and because they were not private citizens speaking out on a public issue. The court ruled that their terminations must stand (Powers v. Northside Independent School District (5th Cir., No. 18-50983, 2/26/20)).

The educators’ claims under the applicable Texas Whistleblower statute were also rejected by the court because it was found that they initially authorized unwarranted testing accommodations for students. In addition, the two educators did not mitigate their damages properly after they had been discharged. Rather than seeking new jobs, they retired and began accepting annuities under the state system.

The court concluded that they both had compliance responsibilities for the school district under Section 504 of the Rehabilitation Act, and therefore their speech on the matter was clearly part of their job and not protected by the First Amendment.

Epileptic Driver Who Was Fired After a Seizure Gets ADA Jury Trial for the Denial of His Accommodation Request for Temporary Non-Driver Work or Six Months of Extended Leave

A federal district court recently rejected an employer’s request for summary judgement and ordered a jury trial over an epileptic driver’s Americans with Disabilities Act (ADA) claim that he was unlawfully denied a reasonable accommodation request after he was terminated following a seizure. The accommodation request was for a temporary job at one of the employer’s multiple facilities in Raleigh and Charlotte, North Carolina, or extended leave.

The plaintiff requested the temporary assignment or extended leave because his doctor authorized that he needed six months following his seizure to be fit to drive again. The court ruled that the plaintiff had raised several reasonable jury questions over whether the denial was an undue hardship for the employer, among other things (Brown v. Martin Marietta Materials (2020 BL 66281, M.D.N.C., No. 1:18-cv-00717, 2/24/20)).

The court ruled that the plaintiff was entitled to a jury trial for both of his claims under the ADA and the North Carolina State Fair Employment Practices Act.

State and Local Governments Begin Regulating the Use of Artificial Intelligence Tools by Employers in the Hiring Process

In August 2019, Illinois became the first state to enact a state law regulating an employer’s use of artificial intelligence (AI) tools as part of the hiring process. Under the Illinois law, any employer using AI, commonly referred to as “hiring robots,” to analyze interview videos is required to disclose the practice in recruiting materials, notify applicants in advance of such use, and get the applicant’s consent before using such AI tools.

The New York City Council is now considering a bill that would go much further. Under the NYC council bill, such AI would be banned from being sold in New York City unless the manufacturer offers a free annual bias audit of the technology. The bill would also require employers to notify applicants of the use of AI in the hiring process and to disclose the qualifications and characteristics being screened. Monetary penalties are being proposed against employers who violate the law.

Federal Court Ruled Employee’s Binge Drinking Not Protected Under the ADA

A federal district court judge recently dismissed the ADA complaint of a worker who suffered from periodic binge-drinking episodes, after which he was unable to perform his job functions adequately. The judge rejected the plaintiff’s right under the ADA to request accommodation to remedy his alleged disability and allow him to succeed on the job. The judge also rejected the employee’s allegation that he was regarded as disabled (Moore v. Centralized Management Services (2020 BL 75139, E.D. Louisiana, No. 2:19-cv-01592. 2/28/20)).

The judge concluded that alcoholism is not a disability under the ADA, per se. The plaintiff’s “episodic relapse” was more similar to “an occasional manifestation of his disease” rather than a permanent impairment covered by the ADA. The condition’s permanency, not whether it recurs frequently, is “the touchstone of the analysis” as to why it is not a permanent disability covered by the ADA.

Finally, the judge ruled that text messages the plaintiff received from the company’s HR consultant that she believed recovering alcoholics were covered by the ADA was not evidence that he was perceived as disabled, rather it was a non-lawyer’s “incomplete comprehension of the law.”