HR and the Courts — July 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.

Supreme Court Holds That Use of Race as a Factor in College Admissions Is Unconstitutional — Impact on Workplace Affirmative Action Plans Not Immediate 

Rejecting the arguments of Harvard University, the University of North Carolina, and the Biden administration that these programs were necessary to ensure campus diversity the Supreme Court ruled 6 to 3 on June 29, 2023, that the universities’ use of race in their specific admission programs violates the equal protection clause of the Fourteenth Amendment. The decision is 237 pages long with majority, concurring, and dissenting opinions. The majority decision is 47 pages.

Chief Justice Roberts, who wrote the majority opinion,  concluded that these affirmative action programs, “… lacked sufficiently focused and measurable objectives warranting the use of race, … involve racial stereotyping, and lack meaningful end points.” He also concluded, “We have never permitted admission programs to work that way and we do not do so today.”

The immediate impact on employment-based affirmative action plans and DEI initiatives is unclear and  will unfold as new cases arise, testing the breadth of this decision. We will continue to monitor developments in the employment area as they occur.

Supreme Court Eases an Employee’s Ability to Prove Religious Discrimination When an Employer Denies a Request for an Employment-Based Religious Accommodation

In a case involving the U.S. Postal Service’s denial of a Christian employee’s request to be exempt from Sunday work, the Supreme Court modified the test applicable to an employer’s denial of a religious accommodation.

In 1977, the Supreme Court ruled that under Title VII an employer could deny an employee’s request for a religious accommodation if the employer could demonstrate that the accommodation would create a  “undue burden” (TWA v. Hardison). In its decision last month, the Supreme Court interpreted the long-standing Hardison rule to mean that in order for an employer to deny an employee’s request for a religious accommodation, the employer must show that the burden of granting the accommodation “would result in substantial increased costs in relation to the conduct of its particular business” (Groff v. DeJoy (U.S. No. 22-174, 6/29/23)).

The plaintiff here asked the Supreme Court to modify the standard for denial of a religious accommodation to be consistent with the standard for denial of an ADA accommodation. The Supreme Court did not grant that request but has clearly raised the employer’s burden in being able to reject a religious-based accommodation from the prior standard, which has applied since 1977.

Federal Court of Appeals Rules Offensive Music in the Workplace Is Actionable Sex Harassment — Rejects Dismissal Because It Is Offensive to Both Sexes 

The 9th Circuit Court of Appeals (covering California, Oregon, Washington, Idaho, Montana, Nevada and Arizona) reversed a federal trial court dismissal of a sex-harassment hostile-environment complaint brought by warehouse workers who complained about offensive, sexually graphic and misogynistic music played by coworkers and supervisors. The trial court dismissed the case on “equal opportunity harassment” grounds because the music was offensive to both sexes. The Court of Appeals disagreed, holding that sex-based discrimination violates Title VII even if it is directed at more than one sex and can create a hostile work environment which is actionable (Sharp v. S&S Activewear LLC (9th Cir. Blom. DLR, 6/9/23)).

The Court of Appeals effectively put an end to the defense that has become known as the “equal opportunity harasser” defense.

University Prevails Against Tenured Professor for Hostile-Environment Sex Harassment — Appeals Court Rejects Defenses That Education Department and University Enforcement of Title IX Is Anti-Male

The 4th Circuit Court of Appeals (covering Virginia, Maryland, West Virginia, North Carolina and South Carolina) affirmed the lower court decision dismissing the action of a tenured psychology professor at George Mason University contesting the sanctions the institution applied following a decision that he created a sex-harassment hostile environment for graduate students. Four students complained that he shared explicit sex talk regarding his sexual exploits and asked questions about their sex lives and that they were forced to participate in the conversations in order to receive favorable treatment regarding research and education opportunities. The university continued to employ the professor as a tenured psychology professor, but banned him from teaching graduate level courses and mentoring graduate students for approximately two years, and disaffiliated him with the university’s clinical psychology program for five to six years.

The appeals court rejected his due-process allegations, concluding that the sanctions did not amount to a “significant demotion” because he is still employed as a tenured professor and the sanctions are not permanent (Kashdan v. George Mason University (4th Cir. No. 20-01509, 6/13/23)). The court rejected his male-bias accusations levelled against the university, its Title IX coordinator, its compliance coordinator, and the Education Department, concluding that all the general statements he raised did not amount to anti-male bias.

Professor Sues University Over “Anti-Racism Training,” Claiming It Created a “Racially Hostile Environment”

An English professor at Penn State University has sued the university, claiming its anti-racism training created a hostile work environment for him, which forced him to resign his position. He is seeking a declaratory judgement from the federal court that the university is in violation of “federal civil rights and free speech laws,” the removal of disciplinary records from his file, and other damages. He is claiming that the university’s anti-racism training  and other race policies created a hostile work environment for him as a White English professor. He also claims he was asked to equalize student outcomes by race in his grading of students (De Piero v. Pa. State University (E.D. Pa. 23-cv-02281, Comp filed 6/14/23)). We will follow developments in this litigation as it unfolds.

Court Rules for Employer That Anonymous Hate Mail Does Not Create Actionable Hostile Work Environment 

A federal district court judge recently dismissed a claim of hostile work environment related to the receipt of anonymous hate mail written on office letterhead and other anonymous hate communications received by an employee. The employee involved shared the anonymous letters and communication put on the windshield of her car with her employer. The employer immediately treated the incidents as a hate crime, contacted the police, and embarked on an internal investigation which was not successful in finding the perpetrator. The employer allowed the employee to work from home on request and provided other requested accommodations based on the employee’s claim of post-traumatic stress and other related ailments.

The court dismissed the hostile environment case, holding that the anonymous letters could not be attributed to the employer and that the employer’s response was reasonably calculated to end the harassment (Washington v. Offender Aid and Restoration (2023 BL 205479, W.D. Va. No. 3:22- cv- 00041, 6/15/23)). The court also dismissed the plaintiff’s disability claims, concluding that the employer also accommodated all of plaintiff’s requests for accommodation.

Reinstated Athletic Coach Awarded Nominal $1 in Damages for Being Denied “Name Clearing” Hearing After Raising Due-Process Violations 

A federal jury handed down a verdict in the case of an athletic coach who was reinstated by the college with back pay after he filed a due-process claim, but was denied a “name clearing” hearing to repair the alleged damage to his reputation. The plaintiff was a substitute athletic manger at Bronx Community College, which is part of the City University of New York (CUNY).

The jury awarded the plaintiff $1 as nominal damages but denied his claim for economic relief, as the plaintiff had been placed on administrative leave with pay during the investigation. He was then fired. However he received back pay as part of his reinstatement after filing the due-process claim (Knights V. C.U.N.Y. ( E.D.N.Y. 19-CV-480 (FB) jury verdict 6/23/23)).