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:

New Supreme Court Decision Will Make It More Difficult for Employers to Dismiss Title VII Court Cases Where Plaintiff Does Not File a Charge With the EEOC or Applicable State Agency

The U.S. Supreme Court in a unanimous decision written by Justice Ruth Bader Ginsburg recently ruled that the filing of a charge with the Equal Employment Opportunity Commission (EEOC) or applicable state agency is not a “jurisdictional” prerequisite of going to court to pursue a Title VII discrimination claim (Fort Bend County v. Davis (Case #US 18-525, 6/3/19)).

The decision will make it slightly more difficult for employers to dismiss court cases where the plaintiff does not file a charge with the EEOC or applicable state agency. In the past, it was widely accepted that filing a charge with the EEOC or applicable state agency was a “jurisdictional” requirement of filing a case in court under Title VII of the Civil Rights Act. This allowed an employer to file a motion to dismiss the lawsuit at any time during the litigation, as “jurisdictional” requirements are never waived by failing to raise them at the outset of the litigation.

That’s what the defendant did in the case before the Supreme Court. The employer litigated the matter for some time and then raised the defense in a motion to dismiss for failure to file a charge with the EEOC. The Supreme Court ruled the EEOC filing requirement was not jurisdictional and denied the employer’s motion to dismiss for failure to raise it in a timely fashion at the outset of the litigation.

In the future, an employer can still raise the defense of “failure to exhaust administrative remedies” when a plaintiff goes to court without filing a charge with the EEOC or applicable state agency. However, the employer must do so in a timely fashion when required at the outset of the litigation.

Court of Appeals Holds a Public School Teacher/Football Coach, Fired After Nude Photos of Him Appeared on Social Media, May Be Entitled to a First Amendment Due Process Hearing Over His Termination

A Mississippi public school district fired a teacher/football coach because of “immoral conduct” after a nude photo of himself appeared on a social media website. The teacher/coach demanded a hearing within the five-day period allowed him for such a demand, and the school district delayed and then cancelled the hearing. The teacher/coach claimed that the picture was posted by his ex-wife and her boyfriend, who had access to the picture and distributed it elsewhere, all without his consent.

The Fifth Circuit Court of Appeals (covering Texas, Louisiana and Mississippi) recently ruled that the teacher/coach may have been denied his First Amendment due process rights as he had a protected property interest in his teaching job and should have been given a hearing (Wallace v. DeSoto County School District (5th Cir., No. 18-60306, unpublished, 4/17/19)).

The county had denied the hearing, claiming that the teacher/coach did not have a license required for his teaching job, thus he had no property interest in the job. The court rejected the argument because under state rules he had until October 15 that school year to get the license, and he took the test for the license on August 2. He was fired on August 15, before the results of the test were available. The court ruled that he has the right to a trial over the issue of his property interest in the job.

EEOC Claims of Athletic Department Preferential Treatment of a Male Staffer Regarding Promotional Opportunities and Pay Bias to Move Forward in Federal Court as University’s Motion to Dismiss Is Denied

The EEOC recently filed suit against George Washington University in federal court in Washington, D.C., and the judge assigned the case denied the university’s motion to dismiss the allegations, holding that the EEOC’s allegations at this point in the procedures must be assumed to be true (EEOC v. George Washington University (2019 BL 166686, D.D.C., No. 17-cv-01978, motion to dismiss, denied 5/8/19)).

In rejecting the university’s motion to dismiss, the judge ruled that the EEOC stated plausible allegations that a female athletic department staffer, who was an executive assistant, suffered Equal Pay Act and Title VII violations when the university hired a male staffer for a “special assistant” job at higher pay than her and refused to consider her for the special assistant job.

Third Prominent University Reaches Multimillion-Dollar Settlement of ERISA Class Action Litigation

A third prominent university has reached a multimillion-dollar settlement of pending Employee Retirement Income Security Act class action litigation that has now been filed against almost two dozen universities. Each class action is a little different, but they all generally allege that the specific university targeted has violated ERISA’s strict fiduciary standards to participants by offering so many investment alternatives that it is confusing to participants. Most of the class actions also allege that the plans are paying too much for recordkeeping to the financial harm of all participants.

The most recent settlement was reached by Vanderbilt University, which has asked for court approval of its mediated settlement of $14.5 million to a class of approximately 40,000, workers. Earlier this year, Duke University and the University of Chicago reached class actions settlements of $10.56 million and $6.5 million respectively.

Most of the other class action lawsuits are pending in federal trial and appellate courts throughout the country.


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