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:

Federal Courts Split on Whether Title IX Provides a Separate Litigation Remedy for Education Workers for Sex Bias in Addition to Title VII

A federal district court in Connecticut dismissed a sex-bias suit filed by a professor against Wesleyan University under Title IX, holding that Title VII provides the exclusive remedy for lawsuits involving sex discrimination against educational workers (Orthon v. Wesleyan University (2020 BL 115135, D.Conn., No. 3:18-cv-00958, 3/27/20)). Neither the Supreme Court nor the Second Circuit (covering New York, Connecticut and Vermont) have addressed the issue.

The Fifth Circuit (covering Texas, Louisiana and Mississippi) and the Seventh Circuit (covering Illinois, Wisconsin and Indiana) both held that Title VII is the sole remedy for sex-bias lawsuits. The Third Circuit (covering Pennsylvania, New Jersey and Delaware) reached the opposite conclusion, holding that sex discrimination actions are permissible under both Title VII and Title IX.

University Prevails Over Former Professor’s Title IX Claim That Its Sexual Harassment Investigation Was Flawed by Gender Bias Against Males – Court Rejects Plaintiff’s Erroneous Outcome Theory

A federal district court in New Jersey dismissed a former male engineering professor’s claim that Princeton University’s sexual  harassment investigation of two separate allegations of inappropriate conduct was riddled with male bias and resulted from unfair treatment caused by the #MeToo movement (Verdu v. The Trustees of Princeton University (D.N.J. No. 3:19-cv-12484-FLW-ZNQ, 3/30/20)).

The court concluded that, regardless of the presence of any procedural errors or alleged gender bias during the investigation of the professor’s dismissal for violating the university’s rule about relationships with students, the professor failed under his “erroneous outcome” theory since he admitted his relationship with the student, lied to investigators about it, and therefore did not sufficiently demonstrated his alleged innocence.

The court rejected the professor’s retaliation claim because he failed to allege a causal connection between his firing and any protected activity. The court also dismissed his disparate treatment claim because he failed to show an example of a woman in a similar position who was treated differently than him. The court gave the plaintiff the option to amend his complaint to allege state-based claims or refile the state-based claims in state court.

Tenure Denial Involving Allegations of Retaliation by Tenure Committee Members Against Professor for Speaking Out in Prior Sexual Harassment Investigation and to the Student Newspaper Proceeds to Trial

A federal district court in Connecticut recently denied a university’s motion to dismiss the tenure-denial case brought by a female professor who claimed members of the tenure committee retaliated against her because of the statements she made during a prior sexual harassment investigation of the department and statements she made to the student newspaper supporting the sexual harassment case. The court concluded that a factual dispute existed as to whether or not the plaintiff’s tenure denial resulted from retaliation against her for protected activity in speaking out in favor of sexual harassment allegations made against her department and her statements to the student newspaper (Byrne v. Yale University (2020 BL 115105, D. Conn., No. 17-cv-1104, 3/27/20)).

The plaintiff was hired in 2008 for a tenure-track position as an assistant professor in the language department. The plaintiff, an assistant professor in the languages department, was interviewed by the university’s Title IX coordinator as part of a sexual harassment investigation regarding the department in 2015. The plaintiff made specific allegations against a member of the department who was also on the tenure committee and refused to recuse himself from deliberations over her tenure application. In addition to the plaintiff’s Title IX retaliation claims, the court ruled that her contract claims against the university must also go forward. The court concluded that the faculty manual rose to the level of a binding contract and that there is a legitimate issue of whether relying on faculty members to voluntarily recuse themselves from tenure committee deliberations violated the faculty manual procedures. The court ruled that both counts will proceed to trial on those merits.

Former Professional Soccer Player and Coach’s Race, Ethnicity and National Origin Claims Against a University Proceed – University’s Argument That No NCAA Coaching Experience Made Him Unqualified Was Rejected

A federal court in the District of Columbia recently allowed a former accomplished international professional soccer player and coach’s Title VII race, ethnicity and national origin case to proceed and rejected the university’s motion to dismiss on the basis that the plaintiff was not qualified for the position because he did not have NCAA or Patriot League coaching experience (Nahkid v. American University (2020 BL 106460, D.D.C., No. 19-cv-03268, 3/23/20)).

In concluding that the case should proceed, the court noted that the university’s job posting did not require work experience in the NCAA or the Patriot League. Rather, the job posting required the “ability” to work within the NCAA and Patriot League regulations and to successfully work with male college-student-athletes. The plaintiff was well-known to the university, as he had been inducted into the university’s hall of fame. The court concluded that he was “widely recognized as one of the most prominent players to have played soccer at the university.”

The plaintiff was born in Port of Spain, Trinidad and Tobago, and graduated from the university in 1987 after playing on its soccer team. He alleges that he played professional soccer in Europe and Asia for 15 years and that he was the head coach of several international professional soccer teams.

Professor’s First Amendment Retaliation Claim Alleging He Was Demoted Because of His Expert Witness Testimony and His Expression of Conservation Views on Gender Dysphoria Proceeds

A federal district court in Kentucky recently ruled that a University of Louisville psychiatry professor’s claim of First Amendment retaliatory demotion must go forward, as he stated a proper claim of potential First Amendment bias resulting from his conservative expert testimony and speech to the Heritage Foundation (a conservative think tank in Washington, D.C.) on gender dysphoria in children and adolescents (Josephson v. Bendapudi (W.D. Ky., No. 19-cv-230, 3/24/20)).

The plaintiff had a record of perfect scores in his annual performance reviews up until 2016. In 2017, he participated in a panel discussion at the Heritage Foundation and also served as an expert witness in cases where he testified that caregivers should fully explore the issue with childhood and adolescent patients before allowing the patient to become a member of the opposite sex. The plaintiff alleges that university officials retaliated against him in violation of the First Amendment for expressing those views, demoted him from head of the division to a professor, and created a hostile work environment for him.