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:

University Maintenance Director’s Email to Employees Regarding Coworker’s COVID-19 Exposure Protected by the First Amendment

A federal district court judge recently denied a summary judgement motion filed by a public university in Pennsylvania seeking to dismiss the complaint filed by a maintenance director who was terminated after sending an email to fellow employees alerting them that a coworker’s spouse was diagnosed with COVID-19 (Woolslayer v. Driscoll (2020 BL 387097, W.D. Pa., No. 2:20-cv-00573, 10/8/20)). The plaintiff consulted with his supervisor and university human resources, proposing that they needed to bring the health concern to the attention of the affected employee’s coworkers. The supervisor and human resources recommended that he not send an email to coworkers. He did so anyway and was terminated.

The plaintiff filed suit in federal court alleging unlawful First Amendment retaliatory discharge. The plaintiff alleged he spoke as a private citizen on a matter of public concern and was not a policy-making employee of the university. He further alleged that the topic of his email was not part of his employment responsibilities. The federal magistrate ruling on the matter concluded, with the approval of the federal district court judge, that the plaintiff spoke as a private citizen on a matter of public concern, which was not part of his employment responsibilities even though the email was sent from his work account to other employees of the university. The court underlined that the matter was a matter of public concern, i.e. “a colleague’s exposure to a highly contagious disease.” The court concluded that the public importance of the issue is “underscored by its context.”

Federal Judge Dismisses Worker Lawsuit Alleging Inadequate Workplace COVID-19 Protocols and Worker Protections, Defers Matter to OSHA

A highly publicized worker lawsuit brought by Amazon warehouse employees in New York alleging that Amazon’s COVID-19 worker protection policies were inadequate and amounted to a public nuisance was recently dismissed by a New York federal district court judge (Palmer et al. v. Amazon (20-cv-2468 E.D. N.Y., 11/2/20)). The judge dismissed the lawsuit, concluding that it is not the federal district court’s place to decide whether an employer is doing enough to protect its workers or whether the employer breached its duty to provide a safe workplace. Rather, it is the purview of the Occupational Safety and Health Administration (OSHA) to assess these cases.

The judge concluded that “courts are not expert in public health or workplace safety matters and lack the training, expertise and resources to oversee compliance with evolving industry guidance.” The judge further concluded that “plaintiffs’ claims and proposed injunctive relief go to the head of OSHA’s expertise and discretion.” The judge also dismissed a related wage claim.

Trump Administration Executive Order Precluding Government Contractors From Training Employees on “Implicit Bias” and Related Topics Subject to Second Legal Challenge

The Trump administration was served with a second lawsuit in less than a week challenging its Executive Order (EO) attempting to limit race and sex stereotyping and implicit bias training by government contractor employers. The lawsuit was filed by the Lambda Legal Defense and Education Fund in the Northern District of California Federal Court, alleging that the EO violates the First and Fifth Amendments to the U.S. Constitution. The lawsuit seeks a declaratory judgement that the EO is unconstitutional and an injunction blocking the implementation of the EO (Santa Cruz Lesbian and Gay Community Center et al. v. Trump (N.D. Cal. No. 5:20-cv-07741, complaint, 11/2/20)).

The EO, which was signed on September 22, 2020, bans any trainings deemed “divisive” or that imply a worker is “inherently racist, sexist or oppressive, whether consciously or unconsciously,” among other things. The EO was also previously challenged on parallel constitutional grounds by the NAACP and other civil rights groups in federal district court for the District of Columbia. A spokesman for the Department of Labor stated that, “Similar to another lawsuit recently filed … the Department of Labor is confident that it will prevail and that the Executive Order will be found lawful.”

Court of Appeals Rules ADA Plaintiff Need Only Prove Unlawful Denial of Requested Accommodation to Prevail on ADA Claim No Additional Proof of Adverse Employment Action Necessary

A divided Tenth Circuit U.S. Court of Appeals (covering Utah, Wyoming, Colorado, New Mexico, Kansas and Oklahoma) sitting en banc (all judges) reversed a recent three-judge panel ruling and held that an Americans with Disabilities Act (ADA) plaintiff need only prove unlawful denial of a requested accommodation in order to prevail in an ADA case and need not prove any additional adverse employment action (Exby-Stolley v. Board of County Commissioners (10th Cir. No. 16-01412, en banc, 10/28/20)).

The trial court and the initial court of appeals ruling denied the plaintiff any relief, holding that her proof of failure to accommodate her right arm disability did not violate the ADA because her employer did not fire her or commit any other adverse employment action. The dissent, joined by five judges, argued that an employer does not violate the ADA unless it discriminates in some additional way against a disabled employee who continues to perform their job without an accommodation.

Join Ira on November 18 for the virtual workshop, “Navigating Higher Ed HR’s Most Pressing Employment Law Challenges — Fall 2020 Edition.” During this interactive problem-solving workshop, Ira will provide an overview of the most pressing employment law issues for higher ed, including those suggested by participants; share takeaways to help avoid litigation related to these issues; and provide the opportunity for participants to work together to examine controversial employment law cases.


The CUPA-HR office will be closed Fridays through August 19.