HR and the Courts – December 2022

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.

University Wins Dismissal of “Deliberate Indifference” to Sex Harassment Claims on Statute of Limitations Grounds 

A federal district court dismissed 12 counts of alleged indifference to sex harassment brought by six Jane Does, five of whom are current or former students and one of whom is a current professor. The case involves allegations against a male graduate student in French language studies who was arrested for rape of a student at another college in 2018. It is alleged that the university did not act on sex harassment allegations of inappropriate touching and “raunchy” texts following the incident at the other college.

The graduate student allegedly raped Doe #1 in September 2020, and the university suspended him in November 2020 following an investigation for sexual harassment, endangerment and disorderly conduct. The graduate student fled the country for France in December 2020 and has not returned. The graduate student was indicted for rape stemming from the 2018 alleged assault in December 2021.

The federal district court judge dismissed all the allegations on statute of limitations grounds (Doe #1 et al v. Board of Supervisors of Louisiana State University and Agriculture and Mechanical College et al ( M.D. La. No. 21-cv-00564, 11/3/22)). Louisiana has the shortest statute of limitations in the country at one year and the judge concluded that the majority of the claims were time barred, granting plaintiffs the ability to amend two of the 12 claims and refile them.

Athletic Director Applicant Loses Reverse Discrimination Claim on the Basis of Interview Performance

A white athletic director applicant who claimed superior qualifications for a senior athletic director position failed to show that the stated reason for his rejection (poor interview performance) in favor of a minority applicant was pretextual. The plaintiff was a long-time athletic director in the South Bend Indiana School district at the time he applied for a broader and more senior athletic director position. The judge ruled that while the plaintiff may have been more qualified “on paper alone” by a comparison of resumes with the minority applicant who was chosen for the job, the employer showed that a comparison of resumes was not the sole criteria for job selection (Groves v. South Bend Community School Corporation (2022 BL 347215, 7th Cir. No. 21-03336, 10/1922)).

The judge went on to recognize that the minority applicant performed much better during his interview and convinced the interviewer that he would be much better able to mend the strained relationship the school district had with the State Athletic Association. The judge further observed that during the interview, the plaintiff stressed his experience in firing coaches and this was not helpful in the mind of the interviewer with regard to the State Athletic Association. The judge concluded that the facts supported the conclusion that interview performance was not a pretext to commit race discrimination. The judge’s conclusion was affirmed by the 7th U.S. Circuit Court of Appeals (covering Wisconsin, Illinois and Indiana).

State of Florida Appeals Federal Judge’s Decision Blocking the Florida Law Restricting Employer Anti-Bias Training

The state of Florida has appealed to the U.S. Court of Appeals for the 11th Circuit, asking the appellate court to reverse a federal judge’s decision that barred enforcement of the controversial law’s provisions, which prohibited employers in the state of Florida from promoting various sex- and race-based anti-bias concepts as part of employee training.

The federal district trial judge issued a preliminary injunction barring enforcement of much of the law based on a conclusion that it violated employers’ First Amendment free speech rights under the U.S. Constitution. The state of Florida argued in its appeal that the statute does not restrict employer free speech, rather it blocks employer conduct “conscripting employees against their will into the audience as a condition of their employment,” (Honeyfund.com Inc et al v. DeSantis et al (Case No. 13135, 11th Cir.)).

The federal trial judge had concluded that Florida state lawmakers wrote a law that attempts to squelch viewpoints on race and sex bias that they do not like. CUPA-HR will follow this litigation as it develops.

Department of Labor Proposes Self-Correction Program for Retirement Plans With Late Participant Contributions and Loan Repayments

The Department of Labor is proposing a new self-correction component under its Voluntary Fiduciary Correction Program (VFCP) to allow plan administrators to self-correct certain plan violations without the need to file a formal application and no action request. Under the proposed rule, the plan would report the correction through an online portal. The VFCP allows plans to self-correct certain Employee Retirement Income Security Act violations and avoid civil penalties by identifying and correcting certain plan design and implementation errors. Under the proposal, plans with late participant contributions or loan repayments could use this alternative to self-correct these violations.

Under the proposed rule, the self-correction must be made within 180 days of the withholding or receipt of funds and the lost earnings must not exceed $1,000. Publication of the proposed rule is expected to be made in late November/early December, and comments must be submitted within 60 days of publication of the proposed rule.

Terminated Softball Coach Sues for First Amendment Speech and Religious Discrimination Allegedly Related to Her Offer to Adopt a Student’s Baby

A former assistant softball coach has filed a lawsuit in federal court alleging that her former university discriminated against her in the exercise of her free speech rights and religious beliefs when she was discharged after she offered to adopt a student’s baby and refused to reveal the identity of the student (Wiggins v. Idaho State University et al (D. Idaho No. 22-cv-00474, complaint filed 11/17/22)).

The complaint alleges that the university violated the former coach’s First Amendment speech and exercise of religion rights by “coercing” the coach to convince the birth mother to disclose the pregnancy and birth to her parents and to withdraw her offer to adopt the baby. The complaint alleges that the university discharged the coach after she refused to disclose the name of the birth mother to the athletic director and dean of students so they could contact the birth mother‘s parents. The plaintiff alleges that her offer to adopt the baby was an “exercise of” her Christian faith. The plaintiff also alleges that the loss of employment forced her to sell her home and move her family to Texas.