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:

Courts Revisiting Telework as a Reasonable Accommodation Under the ADA — Asthmatic Employee Awarded COVID-19 Related Telework Accommodation by Federal Court as a Reasonable Accommodation to His Disability Under the ADA

The pre-COVID-19 era case law firmly upheld an employer’s ability to maintain that mandatory in-person attendance at work was an essential element of most jobs and need not be compromised as an accommodation to an employee otherwise entitled to an accommodation due to their disability. However, with the prevalence, acceptance and effectiveness of telework in virtually all kinds of job settings and industries as a result of office closings due to the COVID-19 pandemic, courts are reassessing prior adverse case law. A federal district court judge recently granted a preliminary injunction under the ADA to an asthmatic social-work employee who had performed the essential job functions during the early stages of the pandemic from home to continue to do so notwithstanding the employer’s position that telework was ending. (Peoples v. Clinical Support Operations (2020 BL 353479, D. Mass,. No. 3:20-cv-30144, preliminary injunction granted, 9/16/20)).

The federal court concluded that the plaintiff’s allegation of losing one’s job during the pandemic created irreparable harm necessary for an injunction. The court also concluded that the plaintiff effectively raised public health concerns in the request for telecommuting during the pandemic since they were very susceptible to illness.

Tenured and Chaired Professor’s Lawsuit Alleging Sexual Discrimination Against University’s Sexual Harassment Investigation Because of Outside Pressure From the #MeToo Movement Moves Forward to Trial

A chaired and tenured cardiology professor was lured away for his former college with the promise of a chair position at another university and was suspended and terminated after a sexual harassment investigation. The professor’s suit alleging sexual discrimination was allowed to proceed to trial on his allegations that the university’s sexual harassment investigation was flawed and that it violated sexual discrimination because of outside influence by the #MeToo movement (Simons v. Yale University (2020 BL 376232, D. Conn. No. 3:19-cv-01547, 9/30/20)).

The plaintiff alleged that he was lured away from Dartmouth College with the promise of a chair position at Yale University School of Medicine. His career ran into problems when a student who he professed “love and romantic interest to” filed a sexual harassment complaint against him. The investigation took place during a Department of Education crackdown in which the university was accused of fostering an environment of sexual harassment against women.

The university suspended the plaintiff, and after an investigation found him guilty of sexual harassment and misconduct. The university reduced the penalty when he appealed and allegedly reversed course again as a result of alleged undue influence by outside sources, negative publicity, and the #MeToo movement. The federal trial judge ruled that the plaintiff’s Title IX discrimination claims along with his breach of contract claim and breach of implied warranty of good faith and fair dealing may move forward to trial. The court dismissed his public policy based wrongful-discharge claim.

University — Not Administrators — Found Liable For Failure to Provide Due Process for Professor Accused of Sexual Harassment Following His Termination

The U.S. Court of Appeals for the 5th Circuit (covering Texas, Louisiana and Mississippi) recently held that a university violated a professor’s due process right by not allowing cross-examination of an accuser during a sexual harassment investigation, but that the individual University of North Texas administrators who denied the cross-examination were not individually liable because until the court’s decision, they did not know of this due process violation and therefore were not “plainly incompetent” and subject to liability (Walsh v. Hodge (5th Cir., No. 19-10785, 9/15/20)).

A University of North Texas Medical School professor attended an out-of-town medical conference with two other professors and two medical students in Seattle. The formal banquet at the conference became “festive and somewhat boisterous.” After the group returned home, the plaintiff professor was accused by one of the students who had attended the conference and banquet of sexual harassment.

All university attendees at the banquet were interviewed by an independent counsel, who concluded that the charges were substantiated. The plaintiff professor requested but was denied the opportunity to question or cross-examine the individual who made the allegations against him. A faculty committee reviewed the conclusions of the independent counsel and recommended the termination of the professor. The president of the university followed through and terminated the professor.

The Court of Appeals concluded that the professor should have been given the chance to question his accuser. However, the Court of Appeals concluded that the university administrators did not knowingly violate the law since the court decision is one of first impression. In light of this, the administrators were not “plainly incompetent” and, therefore, not individually liable for the violation of due process.

Federal Court of Appeals Rules That Pennsylvania Law Allowing Termination of Tenured School District Teachers for Economic Reasons Passes Constitutional Muster

The Third Circuit Court of Appeals (covering Pennsylvania, New Jersey and Delaware) recently ruled that a Pennsylvania law, which expanded the reasons for termination of tenured school district teachers to include economic reasons, passes constitutional muster and is not an unlawful taking of a property right. The case could have further implications in tenure cases involving state university professors. The case involved teachers from the Scranton School District who were suspended notwithstanding their tenure to help offset a projected budget deficit. The teachers sued, claiming an unconstitutional taking, and the court sided with the school district (Watters v. Board of School Directors of the City of Scranton (3rd Cir., No. 19-03061, 9/21/20)).

The Court of Appeals concluded that, “If a state law substantially impairs a preexisting contractual relationship, it is still valid if it has a significant and legitimate public purpose and is drawn in an appropriate and reasonable way to advance that purpose.” The court recognized that the school board considered less drastic alternative measures before concluding that the personnel actions were necessary to avoid the budget shortfall.

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 20.