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:

University Sued by Faculty Union Claiming Layoffs of Adjunct Faculty Due to the COVID-19 Pandemic Violates the Coronavirus Aid, Relief and Economic Security Act (CARES Act)

The union representing the City University of New York (CUNY) faculty, staff and adjunct faculty recently sued CUNY in federal district court claiming that the university wrongfully laid off “thousands” of adjunct faculty in May 2020 after receiving $251 million under the CARES Act. The union, the Professional Staff Congress of CUNY, claimed that the CARES Act required CUNY, as a funding recipient, to continue to pay its employees to the greatest extent possible during the disruptions caused by the novel coronavirus pandemic. The union claims that CUNY violated the CARES Act when it laid off approximately 20 percent of its 12,000 adjunct faculty members (Professional Staff Congress/CUNY v. City University of New York (S.D.N.Y. No. 1.20-cv-05060, comp filed 7/1/20)).

The union has asked for a preliminary injunction stopping the adjunct faculty layoffs, reinstatement of all laid off adjunct faculty, a permanent injunction against layoff of adjunct faculty until the end of the period of closures due to the novel coronavirus pandemic, attorney fees, back pay and costs.

EEOC Guidance Concludes That ADA Precludes Employers From Requiring Employees to Submit to Antibody Tests for COVID-19

Consistent with Centers for Disease Control and Prevention (CDC) guidance, the Equal Employment Opportunity Commission (EEOC) has concluded that mandatory antibody tests cannot be required before employees return to work and that such a requirement would violate the Americans with Disabilities Act (ADA). The CDC has concluded that the presence of antibodies cannot be equated to a person’s immunity from the novel coronavirus. However, the EEOC concluded that employers can test returning workers for COVID-19 under the ADA because an individual suffering from the virus poses a “direct threat” to the health of others in the workplace. The EEOC stated, “Please note that an antibody test is different form a test to determine if someone has an active case of COVID-19.”

Supreme Court Declines to Review Court of Appeals Rejection of the Salary History Defense to Claims of Sex Discrimination in the Setting of Salaries

The Supreme Court recently refused to resolve the issue of whether salary history can be used as a defense in sex discrimination cases alleging that female employees are paid less than males. The Ninth Circuit (covering California, Oregon, Washington, Nevada, Arizona, Idaho and Montana) ruled that salary history, which is commonly used in business to set salaries, is not allowed in the defense of sex discrimination cases because it perpetuates past salary discrimination on the basis of sex. While there appears to be a split in the circuit court of appeals on this issue, the Supreme Court declined to review the case (Yovino v. Rizo (U.S. 19-19-1176, cert denied, 7/2/20)).

The case involved a math consultant and the Fresno County School District. The EEOC, the state of California and dozens of other states and cities ban the use of salary history in setting salaries, believing it perpetuates past discrimination. The EEOC came to this position concluding that women make 80 cents on the dollar compared to men in comparable positions. Some business groups argue that not allowing the use of salary history deprives employers of a necessary tool in the proper setting of beginning salary and that it is a legitimate factor other than sex that should be considered.

Supreme Court Rules 6 to 3 That Gay and Transgender Employees Are Protected Against Discrimination Under Title VII

Conservative Judge Neil Gorsuch and Chief Justice John Roberts joined the four-judge liberal group of the Supreme Court in holding 6 to 3 that Title VII protects gay and transgender employees from discrimination on the basis of sex. This ruling protects employees from discrimination on the basis of sexual orientation and gender identity. The ruling was handed down in three cases: Bostock v. Clayton County (17-1618), involving alleged employment discrimination on the basis of sexual orientation; Altitude Express v. Zarda (17-1623), involving alleged employment discrimination against a gay worker; and RG and GR Harris Funeral Home v. EEOC (19-107), involving alleged employment discrimination against a transgender employee on the basis of sexual identity.

The decision will have a broad impact as more than half of the states in the U.S. do not cover sexual orientation and gender identity in their state anti-discrimination statutes. According to a UCLA Law school study, more than half of the nation’s eight million LGBT workers live in states where they were not protected.

Two Hundred Thousand Dollar Jury Verdict Against a State University in Tenure Denial Case Vacated by the U.S. Court of Appeals

The Fifth Circuit Court of Appeals (covering Texas, Louisiana and Mississippi) recently overturned an adverse $200,000 jury verdict rendered against the University of Mississippi in a tenure denial case. The plaintiff claimed he was denied due process during the tenure review process. The tenure-track professor was on probation for five years while the university evaluated his request for tenure. He was denied tenure based on the quality of his published research. The appeals court concluded that the terms of his tenure-track employment did not give rise to a clearly established protected property interest which was required for the professor to establish a substantive due process claim. The court further concluded that the plaintiff failed to identify any state or federal law that placed the university on notice that his alleged contractual right to a fair tenure review process was a constitutionally protected interest (Wigginton v. The University of Mississippi (5th Cir. No. 19-60268, 7/1/20)).

The court concluded that the tenure review process is itself a subjective review and that the plaintiff was not guaranteed tenure or substantive due process under the facts of the case. Therefore, the court ruled that the case should be dismissed against the state university on qualified immunity grounds. The court also rejected the plaintiff’s reliance on other out-of-circuit court appeals decisions, which he argued perfected his right to substantive due process.

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.


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