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.
EEOC Issues Guidance That Employers Can Offer Vaccine Incentives to Employees
The EEOC issued guidance in late May of this year indicating that employers may offer bonuses and other incentives to encourage employees to get the COVID-19 vaccine. The EEOC concluded that “Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party in the community such as a pharmacy, personal health care provider, or public clinic.” However, employers that administer vaccines to their employees must ensure that the incentives are not coercive. The EEOC highlighted this because vaccinations require employees to answer pre-vaccination disability-related screening questions. A very large incentive could make employees feel pressured to disclose protected medical information. The EEOC underlined that employers must keep worker vaccination information confidential if they choose to obtain it to comply with the Americans with Disabilities Act.
Worker Unable to Mask Up Because of Disability Sues for Disability Benefits
An offshore oil rig worker with a permanent respiratory illness has sued for disability benefits in federal court, claiming his disease makes him unable to wear a mask, and thus unable to do his job consistent with his employer’s new COVID-19 policies (Rankin v. Prudential Insurance Company of America (W.D. Tex., No, 5:21-cv-00499, complaint 5/26/21)). Due to a chronic nerve palsy, the plaintiff has only one usable lung and cannot breath properly while wearing a mask. Under his employer’s new COVID-19 rules, he was required to wear a mask while in transit to the rig and while working.
“Perceived as Gay” Harassment Claim Reinstated By U.S. Court of Appeals
The U.S. Court of Appeals for the Fourth Circuit (covering Maryland, Virginia, West Virginia, and North and South Carolina) reversed a federal trial court grant of summary judgement to an employer and reinstated the plaintiff’s claims of unlawful harassment and hostile work environment related to a supervisor’s adverse treatment of an employee who the supervisor mistakenly perceived as gay (Roberts v. Glenn Industry Group, Inc. (4th Cir., No. 19-01215, 5/21/21)).
The appeals court concluded that the plaintiff’s allegations that he was physically mistreated and harassed, because his supervisor believed that he did not conform to traditional male stereotypes, was actionable as unlawful sexual harassment even though the alleged physical mistreatment (choking and slapping) was not “overtly sexual.” The appeals court further concluded that a trial court could rule that the alleged abuse could have contributed to a sex-based hostile work environment.
Rumors That a Female Manager Traded Sex for a Promotion Ruled Actionable as a Hostile Work Environment Sex Harassment
A federal trial court ruled that alleged repeated rumors among a group of supervisors that a female manager traded sex for promotions constituted workplace harassment and her termination could have been in retaliation for her complaining that the rumors created a hostile work environment. The Federal Trial Court in Maryland concluded that the plaintiff stated a valid claim of sex harassment and retaliatory discharge. The court also concluded that the actions of a group of supervisors who repeated the rumors in closed door sessions that the plaintiff received repeated promotions as a result of a sexual relationship with her boss constituted a valid claim of workplace hostile environment, which should proceed to trial (Parker v. Reema Consulting Services Inc. (2021 BL 181387, D. Md. No. 8:17-cv-01648, 5/17/21)).
The court concluded that the alleged abuse could have been pervasive, as it lasted more than four months. Moreover, the close timing between plaintiff’s reporting the harassment and her discharge could support a finding of retaliatory discharge.
Supreme Court Hears Oral Argument in “Angry Cheerleader” Case — First Amendment Ramifications for Higher Ed and NCAA
The U. S. Supreme Court recently heard oral argument over a pending case about whether a school district may discipline students for social media posts under the First Amendment. Depending on the ruling in the case, it may give public universities latitude in restricting college athletes’ online speech, including social issues and or other protest issues.
Although the case specifically applies to the K-12 school district context, the ruling may have First Amendment application to public universities. The case stems from an incident in which a high school sophomore was disciplined after she shared a picture of herself on Snapchat with her middle finger raised with a caption, “F… School, f… softball, f… cheer, f… everything.” The cheerleading coach heard about the post and then suspended the student form the junior varsity team for the entire school year. The student’s parent then filed a First Amendment lawsuit, which was recently argued before the Supreme Court.