HR and the Courts — August 2023

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.

Tenured Professor Loses First Amendment Retaliation Claim Related to “Offensive” Blog Posted Months Before the Adverse Action 

The U.S. Court of Appeals for the 4th Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) dismissed a North Carolina State University professor’s First Amendment retaliatory discrimination claim following the removal of the professor from a key university program. The professor claimed that his removal stemmed from his critical  “woke joke” blog post. His blog stated that the Association for the Study of Higher Education’s conference had “… moved from focusing on general post-secondary research to social justice.” He claimed that the comment was protected speech and could best be characterized as a “woke joke.”

The Court of Appeals dismissed his claim holding that the blog post was published 10 months before his removal from the program area and eight months after the department head had emailed him stating that the blog had “generated controversy on social media.” The appeals court ruled 2 to 1 that “temporal proximity” between the alleged speech and the adverse action was lacking and therefore the case must be dismissed (Porter v. Board of Trustees of North Carolina State University (4th Cir. No. 22-01712, 7/6/23)).

Court Decisions on Telework Disability Accommodation Changing in the Aftermath of the COVID-19 Pandemic

Federal judges are less likely to decide in favor of employers rejecting telework accommodation in disability cases in the aftermath of the COVID-19 epidemic. The employer win rate in cases denying a disability telework accommodation has dropped to 60% in the aftermath of COVID-19 compared to a 70% win rate during the two-year period prior to the pandemic, according to statistics cited by Bloomberg Industry Group (DLR 7/6/23).

Federal judges are now more likely to consider telework as a reasonable accommodation in certain disability cases as a result of the widespread use of telework during the COVID-19 pandemic.

Mandatory Paid Family and Medical Leave Becoming More Common Among State and Local Jurisdictions

Twelve states, plus the District of Columbia, have enacted mandatory paid medical and family leave for workers within their jurisdictions. While the form of the mandate varies from jurisdiction to jurisdiction, workers are increasingly being granted by these statutes guaranteed paid time off to care for their own serious medical condition, a newborn or newly adopted child, or a family member’s major medical condition. In addition, according to Bloomberg DLR, Michigan and New Mexico appear likely to adopt mandatory paid-leave programs in the near future. It is important to check your state and local jurisdictions for developments in this area.

Professor of Iranian Decent Entitled to Title VII Jury Trial Over Allegations That His Contract Non-Renewal Was Based on National Origin Prejudice by His Turkish Supervisor 

A federal district court judge denied a summary judgement motion and held that a tenure-track art professor of Iranian descent was entitled to a jury trial under Title VII regarding his allegations that his supervisor denied renewal of his contract because of the supervisor’s anti-Iranian, Turkish background. The judge concluded that the plaintiff stated a claim of national origin discrimination under Title VII and was therefore entitled to a jury trial over those allegations and allegations that the university denied the plaintiff access to legal counsel and misstated his legal position (Shams v. Delta State University (N.D. Miss. No. 22-cv-00035, 7/11/23)).

The plaintiff alleged that there is tension between Iranians like himself and Turks like his supervisor because the two countries “… share a contentious border and not much else.” The plaintiff also alleges that he was replaced by an art professor of Turkish background who was contacted for the position before the non-renewal of his contract.

Former Professor’s First Amendment Retaliation Claims Related to His Termination After Publishing an Article on “Racial IQ Gap” Dismissed Against University, But Survives Against University Officials

A former Cleveland State University professor can pursue some of his First Amendment retaliation claims, after he was terminated following publication of an article that advanced a theory that genetics cause a “Racial IQ Gap” between White and Black Americans. The federal district court hearing the case dismissed the complaint against the university on sovereign immunity grounds. However, the court let some of the complaint proceed against some university officials, at least through discovery. After completion of discovery, the court will rule on whether individual university officials are covered by the university’s sovereign immunity (Pesta v. Cleveland State University ( 2023 BL 242086, N.D. Ohio, No. 1-23-cv-00546, 7/14/23)).

The controversial article was subject to outside criticism that the professor unethically misused NIH Data on studies of racial differences to reach his conclusions. The university stated that the professor was terminated for ethical lapses and for violating its academic and integrity standards. The professor claims that he was fired because of university viewpoint discrimination against the conclusions in his article in violation of the First Amendment. We will follow developments as this case unfolds.

New Jersey Equal Pay for Temps Law Is First to Mandate Joint Liability of Employers Along With Temp Agencies

New Jersey employers will face expanded liability along with temp agencies under a law which mandates that temp employees receive pay and benefits equal to comparable full-time employees employed by the employer. The law is the first to impose joint-employer liability along with temp agencies employed by the employer and goes into effect on August 5, 2023, according to Bloomberg DLR, 8/4/23. While other states — including California, Illinois and Massachusetts — have temporary-worker bill-of-rights laws, New Jersey is the first to impose joint-employer liability on the actual employer employing the temp agency.

The New Jersey law imposes the requirement that temp employees in the state receive wages and benefits comparable to those of similarly situated full-time employees.