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:

Three Separate Title VII Cases Have Three Different Outcomes

One case was dismissed by a federal district court judge, one was reinstated by an appeals court after a trial court dismissal, and one can continue not as a Title VII claim, but as a violation of the Constitution’s Equal Protection clause. The three cases are outlined below:

Campus Police Officer at Georgetown University Loses Title VII Racial Discrimination, Retaliation and Hostile Work Environment Claims

A campus police officer at Georgetown University recently had his claims of race discrimination, retaliation and hostile work environment dismissed by the federal district court for the District of Columbia as without merit (Ross v. Georgetown University (2019 BL 216328, D.C. No. 18-0671, 6/17/19)).

The officer claimed that the university began to emphasize “racial profiling” against African Americans, and he refused to comply with such directives as part of his job. He claimed that he was criticized and received negative performance reviews and reprimands. He also claimed that he was wrongly cited for poor driving during a snowstorm which resulted in an accident, although he admitted that the “citation” involved no discipline or any specific adverse consequences.

The court dismissed the officer’s complaint, holding that many of the allegations were beyond the applicable statute of limitations. The court also held that those allegations that were timely either did not involve an adverse employment action or were too few to constitute a hostile work environment over the alleged four-year period. In dismissing the officer’s Title VII claims, the federal district court remanded all of the officer’s “state law” claims under the D.C. Human Rights Act to the Superior Court for the District of Columbia for its review.

Appeals Court Reinstates Croatian Professor’s Title VII National Origin/Ethnicity Discrimination Claim

The U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey and Delaware) reversed a trial court’s dismissal of an national origin/ethnicity-based discrimination claim by a Croatian dental professor at the University of Pittsburgh who had been terminated as a result of an investigator’s mistaken conclusion that she had threatened to kill a colleague (Bagic v. University of Pittsburgh (3rd Cir. No. 18-2951, non-precedential 6/11/19)).

Ten years into her tenure, the plaintiff professor became embroiled in a controversy with another professor she had reported as abusing faculty privileges. The colleague falsely accused her of threatening to kill him.

An investigator’s notes referred to the plaintiff’s ethnicity and erroneously concluded that the plaintiff may have threatened to kill the colleague. The appeals court reversed the trial court’s dismissal of the complaint, concluding that the propagation of a false threat throughout the university’s investigation and subsequent procedures raises a question of discriminatory intent which should go to trial.

Judge Recommends Dismissal of Transgender Professor’s Title VII Discrimination Charges, But Allegations of Denial of Equal Protection May Proceed

A federal magistrate judge recently recommended dismissal of a transgender male professor’s claim of Title VII sex discrimination as a result of the university’s denial of medical coverage for his hysterectomy, which was recommended by his doctor to treat his condition of gender dysphoria. The judge concluded that while Title VII could apply to certain transgender discrimination allegations, it did not apply here (Toomey v. Arizona (D Az. No. 19-cv-35, report and recommendation, 6/24/19)).

The judge did rule, however, that the professor’s case could continue under the Constitutionally-based theory of violation of the Constitution’s Equal Protection clause. The judge concluded that the plaintiff was a member of a discrete class of individuals characterized by “immutable characteristics determined at birth,” and that while no sex discrimination covered by Title VII occurred, other discrimination based on his unique characteristics may have occurred.

Court Rejects Jane Does’ Request for Anonymity in a Public Records Request for Disclosure of a Sexual Harassment Investigation of a Former Community College President

A Washington State appeals court overturned a trial court’s protection of the names of 10 Jane Does who accused a former community college president of sexual harassment. The local newspaper in Spokane, Washington, requested the information under the Washington State public records act, which applied to Spokane Falls Community College. The trial court rejected the request and ruled that the names could remain redacted.

However, the appeals court decided that none of the information was taken from a personnel file and therefore the public records statute, which is broad with few exceptions, requires that the public be provided the information (Cowles v. Jane Doe #1 (Wash. Ct. App., Div. 3 No. 36030-0-11, unpublished, 6/18/19)).

The appeals court stated that the public records statute does not allow public employees themselves to decide what is good and what is not good for the public to know, even if such disclosure “causes inconvenience or embarrassment.”

NLRB Reverses Decades-Old Precedent, Holding That an Employer May Ban Union Solicitation by Non-Employees in the Employer’s Public Areas

The National Labor Relations Board (NLRB) recently ruled that an employer could ban non-employees from soliciting employees regarding union membership in the employer’s public areas, a decision which could have a major impact on private colleges and universities that are subject to the NLRB’s jurisdiction.

The NLRB ruled that the employer could enforce the rule banning such union solicitation so long as it applies the rule in a non-discriminatory manner and bans all non-employees from the similar activity of soliciting employees in public areas regarding any cause or promotion (UPMC 368 N.L.R.B. No. 2 Opinion 6/14/19).

The NLRB made the ruling by a 3-to-1 decision, reversing longstanding precedent allowing union organizers into public areas of employers’ operations. The lone Democratic member of the NLRB dissented.


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