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:

Court Decision Suggests That Continued Attempts to Accommodate a Disabled Employee, Even After an ADA Lawsuit Is Filed, Might Reduce or Eliminate an Employer’s Monetary Liability

The U.S. Court of Appeals for the Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) recently affirmed a jury verdict in favor of a blind county worker finding a violation of the Americans with Disabilities Act (ADA) violation but awarding no monetary damages. The plaintiff worked at a Maryland call center and was initially denied access to software that enabled her to do her job because the software became unavailable. While the ADA lawsuit was pending, the employer restructured the plaintiff’s job by modifying its essential elements to remove the duties she could not perform without the software.

In affirming the jury verdict, which granted the plaintiff no damages, the appeals court held that while an employer does not have to modify a job’s essential elements to accommodate a disabled employee under ADA rules, it can voluntary do so. The court recognized that this is what the employer did in this case and that the plaintiff did not show other harm or that the change hurt her chances for promotion. Moreover, the court recognized that the accommodation may be temporary if the employer can again find a way to regain access to the software (Reyazuddin v. Montgomery County (2018 BL 430258, 4th Cir., No. 17-2103, unpublished, 11/21/18)).

Two Recent Lawsuits Alleging “Anti-Male” Bias Found to Be Without Merit

A judge in the federal district court in the District of Columbia recently dismissed as meritless a lawsuit filed by a Howard University law professor alleging “anti-male” bias and Title IX and Title VII violations by the university in its Title IX investigation and subsequent discipline of him involving student allegations of inappropriate classroom conduct (Robinson v. Howard University (2018 BL 428398, D.D.C. No. 1:18-cv-00518, 11/20/18)).

In this case, the university investigated the tenured law professor and found merit in the students’ allegations of inappropriate classroom conduct and disciplined the professor with a confidential letter of reprimand and requirements that he undergo sensitivity training, submit future exams and quizzes to the dean’s office for review, and have a few of his lectures monitored.

The court rejected the professor’s claim that the university’s investigation reached the wrong conclusion and therefore revealed “anti-male” bias. The court concluded that the professor did not demonstrate that he was innocent of the charges nor did he demonstrate any discriminatory motive by the university’s Title IX coordinator. The court dismissed his Title VII claims, concluding that he suffered no cognizable injury under the statute as the discipline did not adversely affect his pay, benefits or job status. In rejecting the professor’s claims of damage to his professional reputation, the court noted that the disciplinary letter was confidential, and the events only became public as a result of his lawsuit.

In another case, the U.S. Court of Appeals for the Second Circuit (covering New York, Connecticut and Vermont) has rejected a male university student’s claim that the disciplinary investigation and proceeding which was conducted related to allegations that he assaulted three female students was biased against males. The court rejected the male student’s claim that trauma theory invalidated the allegations against him because the complainants were suffering trauma and should have been questioned further on why they all came forward at almost exactly the same time.

The court also rejected the plaintiff’s claim that the  Title IX coordinator’s use of the terms “victim” and “survivor” to refer to the female complainants demonstrated anti-male bias and concluded that the coordinator’s use of those terms may reflect “statistical reality and her desire to be sensitive” rather than gender bias (Doe v. Colgate University (2019 BL 12883, 2ND Cir., No. 17-3594-cv-unpublished, 1/15/19)).

Federal Court Holds That Failure to Provide a Place to Express Milk, Even Though Not Specifically Required Under Title VII, Can Be Used as Evidence of a Hostile Work Environment and Sexual Harassment

An employee of a KFC franchise filed a suit in federal district court alleging she was forced to work in a hostile work environment based on sex and was the victim of continued sexual harassment at work.

As part of her evidence, she alleged she was not given a private place to express milk and was initially forced to use a single-stall public restroom and was later told to use the manager’s office because of complaints that she was tying up the restroom. When she used the manager’s office, other employees would walk in even when she locked the door. She was told by one male employee to express milk at home and not at work. The employer defended by arguing that Title VII is not an accommodation statute and does not require a private place to express milk and therefore the evidence should not be allowed to be presented at trial.

However, the court held that the evidence the plaintiff wants to submit regarding expressing milk is relevant to her case and therefore will be allowed at trial (Lampkins v. Mitra QSR KNE LLC (2019 BL 26376, D. Del., No. 16-647, 1/28/19)).

Join Ira Shepard on April 24 for a two-hour problem-solving session based around current and relevant employment-law topics. Register now for this virtual workshop.