The Higher Ed Workplace Blog

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.

Supreme Court Agrees to Review First Amendment Free Speech Case Filed by Community College Trustee Opposing His College Board’s Decision to Censure Him 

The U.S. Supreme Court recently accepted review of a case with wide implications for First Amendment lawsuits and governance issues at public higher education institutions. The case was brought by a former trustee against the Texas community college where he served (Houston Community College System v. Wilson (U.S. No. 20-804)). The board censured the trustee for conduct that the board concluded inappropriate and inconsistent with his responsibility to debate issues. In the end, the decision favored the board, even though the board decision was inconsistent with a trustee’s personal opinion.

The trustee’s tenure at Houston Community College was from 2014 to 2019, and the board’s decision to censure him was for his conduct in 2018. The trustee had filed multiple lawsuits against the college and had backed robocalls protesting the college’s operations in Qatar. He allegedly arranged for a private investigation into whether a fellow trustee actually lived in her district. As part of the sanctions included in the censure, the trustee would not be able to hold board leadership positions or get reimbursed for board travel. The plaintiff is no longer a trustee on the board, having resigned in 2019 and having lost a reelection bid for a different seat on the board later that year.

The trustee argued that “he was committed to helping root out what he saw as unwise, unethical and unlawful conduct by fellow board members.” He further argued that his colleagues on the board “were not pleased to have their behavior questioned so publicly.” The federal district court that heard the case initially disagreed with the trustee and dismissed the case. The Fifth U.S. Circuit Court of Appeals (covering Texas, Louisiana and Mississippi) reversed, and ruled that the trustee had raised a valid First Amendment issue on a matter of public concern. The Supreme Court accepted review of the Fifth Circuit’s decision and will hear oral argument and review the matter.

Independent Contractor Lacks Standing to Bring Title IX Claim Against University

In a case of first impression, a federal district court dismissed an independent contractor claim that the contractor was fired in retaliation for reporting a possible Title IX violation by a university sports coach. The federal court concluded that, “as a nonemployee [the plaintiff] could only pursue a Title IX claim if she had been subjected to discrimination under any education program of benefit,” (Conviser et al. v. DePaul University (2021 BL 119334, N.D. Ill, No. 20-cv-03094, 3/31/21)).

The plaintiff and her company provided sports psychology and mental health services to students at the university under a professional services agreement. The plaintiff alleged that she reported that one of her student-athlete patients reported that her coach had punched the student, and that shortly afterward the university terminated her contract early. The court dismissed the case, holding that the plaintiff was not an employee or a student deprived of access to an educational program at the university.

University Prevails in Age Discrimination Lawsuit Brought by Former Department Chair, Challenging His Removal Based on a Faculty Grievance Committee Report and a Title IX Investigation 

The U.S. Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin and Indiana) recently affirmed a federal trial court’s dismissal of an age discrimination case against a university employer who had removed a business school department chair based on the conclusions of a faculty grievance committee and Title IX investigation, both concluding that the department’s culture was “toxic and dysfunctional” (Sinha v. Bradley University (No. 1:18-cv-01319, MMM-JEH, 4/26/21)).

The department chair sued, alleging that the university had removed him from his department chair position in retaliation for not following directives to make the jobs of older faculty members less desirable so that they would retire. In rejecting the professor’s claims, the court also affirmed the dismissal of allegations by the professor that the retaliation also included denying him a promotion to full professor.

Nearly Half of All Employers Cited by OSHA for COVID-19-Related Violations Are Appealing the Citation

According to the OSHA data covering OSHA COVID-19-related citations from July 1 through April 12, 42 percent of all employers cited appealed the violations. This is a rate five times higher than the normal appeal rate, which is about eight percent. Commentators conclude that the high appeal rate is due to fear of possible civil liability for the alleged violations. In addition, the defense and appeal often point out that the citations are based on ever-changing OSHA regulations/guidance as well as changing federal, state and local guidance. Possible damage to reputation concerning this volatile public health issue also seems to be a motivating factor in the very high appeal rate.

 

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