The Higher Ed Workplace Blog

HR and the Courts: Recent Rulings and Legislation

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

States Consider Sexual Harassment Remedies and Prevention Reforms to Supplement Title VII
With the advent of the “me too” movement, many state legislatures are considering sexual harassment remedies and prevention ideas that would supplement the federal statute prohibiting sexual harassment in the private sector. Many states are also considering expanded reforms that would apply to state legislatures and state employers, including enhanced sexual harassment training. Some legislatures are considering banning the expenditure of taxpayer dollars to defend sexual harassment complaints, although analysts see such bans as very difficult to draft and enforce.

The two most common reforms being considered to supplement state statutes that apply to private employers are a ban on confidentiality agreements and a ban on mandatory arbitration of sexual harassment complaints. Some states are also considering the lengthening of the applicable statute of limitations on sexual harassment complaints. The state legislatures that appear most active in considering new reforms are New York, California, Illinois, Washington, Arizona and Florida.

Jury Decision in First Transgender Discrimination Case to Go to Trial Results in $1.7 Million Verdict in Favor of Plaintiff
An Oklahoma federal jury recently decided in favor of a transgender professor who alleged she was denied tenure in 2009-10 and denied the ability to reapply for tenure in 2010-11 because of her gender. The jury awarded her $1.17 million in damages (Tudor v. SE Oklahoma State University (W.D. Okla., No. 5:15-cv-00324. Jury verdict 11/20/17)).

While there have been a small number of transgender cases that have been decided by a judge in “bench trials,” the plaintiff’s counsel states that this is the first transgender plaintiff to make it to a jury decision under Title VII. The university president issued a statement to Bloomberg, which reported the decision in late 2017, that it will respect the jury decision.

The case is interesting from a technical legal perspective, as the judge instructed the jury that Title VII does not protect workers from discrimination because they are transgender. However, the judge instructed the jury that in order for it to find in favor of the plaintiff, it must find that the university acted as it did because of the plaintiff’s gender (female) or because it perceived her as not conforming to traditional gender stereotypes.

Given these instructions, the case does not address the current hot-button issues of whether transgender workers are expressly covered by Title VII without needing to prove illegal gender or sex stereotyping.

Court of Appeals Upholds Employer’s Right to Enforce Mandatory Arbitration of Minimum Wage/Wage and Hour Complaints
The U.S. Court of Appeals for the Second Circuit (covering New York, Connecticut, Vermont and New Hampshire) recently ruled in favor of an employer who had an employee’s federal Fair Labor Standards Act (FLSA) wage and hour complaint dismissed and deferred to arbitration under the mandatory arbitration policy by a federal district court judge (Rodriguez-Depena v. Parts Auth., Inc. (2017 BL 443055, 2nd Cir., No. 16-3396, 12/12/17)). The appeals court concluded that while the FLSA authorizes lawsuits in any federal or state court of competent jurisdiction, the FLSA does not prohibit arbitration of such claims.

Arbitration provisions continue to be a controversial topic in the context of whether class or collective actions may be deferred to arbitration. The Supreme Court is taking up that issue and likely to rule on it this year.

NLRB Reverses Controversial 2015 Joint-Employer Decision and Goes Back to Prior Rule Which Had Been in Effect for 30 Years
The newly composed, Republican-majority National Labor Relations Board (NLRB) has reversed the controversial 2015 Browning Ferris Industries decision by the then Democratic-controlled board. In the new decision, the Board held that it would go back to the “standard that had served labor law and collective bargaining well … and is understandable and rooted in the real world.” This rule says that multiple entities can be considered joint employers of a group of employees only if each exercises direct and immediate control over the employees with regard to wages, hours or working conditions (Hy-Brand Industry Contractors Ltd (2017 BL 447607, 365 NLRB No. 156, 12/14/17)).

The 2015 ruling changed the joint-employer standard to one in which entities could be considered joint employers and then each could be liable for employer actions with regard to those employees if the putative employer had “indirect or potential” control over the employees who are formally employed by someone else.

The joint-employer controversy has the most direct impact on higher ed where a college or university contracts out services (e.g. food service, janitorial, police, etc.) to an independent entity. Under the former (now current) joint-employer rule, the college or university can eliminate employee liability by giving the contractor complete control over wage, hours and working conditions.


The CUPA-HR national office will be closed July 4 in observance of Independence Day.