The Higher Ed Workplace Blog

HR and the Courts

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

Federal Court Dismisses In-House Attorneys’ Retaliation Claims But Allows Sex-Based Salary Discrimination Claims to Proceed

A federal district court trial judge recently dismissed the retaliation claims filed by two female in-house attorneys formerly employed by Louisiana State University. Both attorneys were fired and claimed that their terminations were in response to their claim that they were paid less than male attorneys at the university. The federal judge dismissed the retaliation claims on qualified immunity grounds, holding that the plaintiffs’ supervisors were entitled to qualified immunity. (Muslow v. Board of Supervisors of Louisiana State University (E. D. La. No. 19-cv-11793, 8/4/20)).

Regarding the unequal pay claims, the judge concluded that the plaintiffs alleged sufficient circumstantial evidence to support their claim that their supervisors knew of a study revealing pay disparities, but then took affirmative action exacerbating the situation rather than remedying it. The plaintiffs hope to be reinstated to their positions as part of their request for relief, notwithstanding the dismissal of their retaliation claims.

Minnesota State Appellate Court Rules University Hospital Is Liable for Employment-Related Sexual Harassment of an Unpaid Doctoral Student

A Minnesota appellate court reversed a trial court decision holding that a hospital was not liable for alleged sexual harassment of an unpaid doctoral student because the student was not an employee. On the contrary, the appellate court ruled that a hospital system may be liable for sexual and race harassment of an unpaid doctoral student who acted like an employee even though she was not paid for her work. (Abel v. Abbott NW Hospital (2020 BL 282579, Minn. No. A19-0461. 7/29/20)).

The appellate court concluded that the doctoral student bore the hallmarks of a traditional employee in that she had to apply for her position at the hospital, be accepted into the program, accessed traditional employee resources, such as IT and human resources, and provided services to the hospital’s patients and clients just as all other paid hospital employees did.

The plaintiff alleged that her program director required her to participate in highly sexualized group and individual sessions, and that she was subjected to unwanted touching during those sessions. She also alleged that the program director required the students to mimic having sex with him and referred to the plaintiff, who was Indian, as the “brown one.” The appellate court also allowed plaintiff’s negligence claims against the hospital to proceed.

Denver U.S. Court of Appeals Rules That “Older Working Women” Are a Protected Class Under Title VII

The Denver-based U.S. Court of Appeals for the Tenth Circuit (covering Colorado, Utah, Wyoming, New Mexico, Kansas and Oklahoma) is the first U.S. Court of Appeals to rule that “older working women” is a separate “intersectional” class protected against discrimination under Title VII. The Equal Employment Opportunity Commission filed an amicus brief in the case supporting this intersectional protected class. The appellate court concluded that Title VII prohibits discrimination against “older working women” the same as it protects bias against sex and any other trait protected by the law, including sex plus race. (Frappied v. Affinity Gaming Black Hawk (10th Cir. No. 19-1063, 7/21/20)). The court pointed out that it makes no difference that age discrimination is protected by another statute — such as the ADEA, which is different than Title VII — and that the plaintiff can file the claim under Title VII.

The court further reasoned that Title VII protects women against discrimination plus another factor, even if the other factor is not covered by Title VII, “such as a policy which, for example, discriminates against female Yankee fans.” The plaintiff and seven other women over 40 sued the gaming company after losing their jobs in a “mass termination.” The court concluded that, “Research establishes that ‘older women’ face unique bias based on negative stereotypes associated with their status as older women.”

University Doctor Granted Trial Over His ADA Suit Alleging Retaliatory Discharge and Harassment for Speaking Out in Support of Colleagues With Depression and in Support of His Own Mental Health Issues

A federal district court judge recently denied summary judgement and ordered that a Duke University anesthesiologist receive a jury trial over his allegations that he was discriminated against under the ADA for speaking out in support of colleagues with depression and in support of his own mental health issues. The doctor claimed he was discharged in retaliation for his actions in which he raised mental health issues on behalf of himself and other colleagues in the wake of another colleague’s suicide. He also claimed he was denied a transfer to another department in retaliation for his actions in support of colleagues with depression.

The plaintiff claimed that the university interfered with his other employment prospects by “blacklisting” him from other positions in response his protected activities. The plaintiff’s employment-contract claims that he was denied contract renewal will go to trial. The judge’s order also allows his ADA claims to go forward to trial. (Shaughnessy v. Duke University (M.D.N.C. No. 1:18-cv-00461, 7/23/20)).

CUNY Prevails in CARES Act Layoff Case

Case update: A U.S. federal district court judge recently dismissed this lawsuit in favor of CUNY, concluding that the CARES Act does not create an individual right to continued employment. 

On August 7, 2020, a U.S. federal district court judge heard arguments from a faculty union claim that the City University of New York (CUNY) violated the CARES Act in accepting over $250 million in CARES Act funding and then laying off 2,800 adjunct faculty and staff. The union suing the university has asked that the judge reinstate the laid-off workers. The union argued that the CARES Act requires employers receiving money under the program to “pay employees to the greatest extent possible.” The union further argued that the $30 million cost to the university to reverse the layoffs is far less than the $250 million the university received from CARES Act funding. (Professional Staff Congress at CUNY v. City University of New York (Case no. 1:20-cv-05060)).

For the latest labor and employment law developments, check out the Workplace Initiatives and Strategies for Employers (WISE) blog, managed by Saul Ewing Arnstein and Lehr, and sign up for free alerts.

Join Ira on November 18 for the virtual workshop, “Navigating Higher Ed HR’s Most Pressing Employment Law Challenges — Fall 2020 Edition.” During this interactive problem-solving workshop, Ira will provide an overview of the most pressing employment law issues for higher ed, including those suggested by participants; share takeaways to help avoid litigation related to these issues; and provide the opportunity for participants to work together to examine controversial employment law cases.


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