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:

Female Hockey Coach’s Sex Discrimination Claim Moves to Trial, Sexual Orientation Claims Dismissed as Court Holds Title VII Does Not Cover Sexual Orientation Discrimination
An accomplished female hockey coach, whose team won the women’s NCAA national championship five times, will be allowed to proceed to trial over sex discrimination claims she filed against her employing university when her contract was not renewed and she was terminated. Her claims that the discharge also constituted discrimination against her because of her sexual orientation (lesbian) were dismissed by a federal district court judge in Minnesota because the U.S. Court of Appeals for the Eighth Circuit (covering Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota and Nebraska) precedent is that sexual orientation is not covered by Title VII (Miller v. Board of Regents of the University of Minnesota (Minn. D. Ct. No. 15-CV- 3740, 2/1/18)).

The hockey coach is joined as a plaintiff with two other female coaches who are suing the university. The sitting judge held that he was bound by the former decisions of the Eighth Circuit on the sexual orientation issue. However, he held that there was sufficient evidence that these women coaches may have been treated differently than male coaches and therefore allowed the sex discrimination claims to proceed to trial.

There is a split in circuits on the sexual orientation issue and whether it is covered by Title VII, which will ultimately have to be decided by the Supreme Court. The Seventh Circuit (covering Wisconsin, Illinois and Indiana) and the First Circuit (covering Maine, New Hampshire, Massachusetts, Rhode Island and Puerto Rico) have both ruled that Title VII does cover sexual orientation claims.

Alleged Inter-University Faculty Non-Poaching, Non-Hiring Agreement Questioned as Antitrust Violation
A Duke University Medical School faculty member who was denied employment when she applied to neighboring University of North Carolina (UNC) Medical School for a faculty position and allegedly was told that it was because of an agreement between the universities and their medical schools not to hire the other’s faculty members has sued, claiming a violation of the Sherman antitrust law. Duke University denies having any anti-poaching or anti-hiring agreement with UNC or its affiliates. While the federal district court for the Middle District of North Carolina has not reached a substantive decision on the merits of the lawsuit, the judge recently ruled that the case should proceed as a class action on behalf of nearly 5,500 faculty members (Seaman v. Duke University (2018 BL 34111, M.D.N.C., No. 1:15-cv-462, 2/1/18)).

The plaintiff alleges that the alleged agreement has the effect of suppressing salaries because it reduces the universities’ need to offer or maintain attractive salaries to recruit and retain qualified faculty. The presiding judge ordered that the case move forward and, according to Bloomberg BNA, certified the class to include all Duke University and Duke University Health System faculty employed since 2012.

School Nurse Loses ADA and First Amendment Retaliation Case, as Court Finds Her Transfer Did Not Constitute an Adverse Employment Action
A high school nurse in Louisiana lost her First Amendment and Americans with Disabilities Act (ADA) retaliation case because her transfer to a new school at the same wage and benefits package did not constitute an adverse employment action even though her new offices were subjectively less desirable and her children attended the school from which she was transferred (Rayborn v. Bossier Parish School Board (5th Cir., No. 16-30903, 2/2/18)). The nurse complained publicly about the school’s lack of accommodation of a diabetic student who later committed suicide as a result of bullying. The nurse claimed that had the school done a better job accommodating the diabetic student, the suicide could have been prevented.

In affirming the trial court’s dismissal of her case, the Court of Appeals for the Fifth Circuit (covering Texas, Louisiana and Mississippi) referenced the Equal Employment Opportunity Commission’s guidance on retaliation, which states that a job transfer is not necessarily evidence of retaliation and that transfer to “less prestigious or less desirable work or locations” might qualify as an adverse employment action. In this case, the court concluded that the nurse’s transfer to a different school with the same wage and benefits package did not qualify as retaliation.

Federal Court Holds That Title VII Does Not Prohibit Discrimination Against Individuals Incorrectly “Perceived” to Be a Member of a Protected Class
It is clear law that the Americans with Disabilities Act (ADA) prohibits discrimination against individuals with a disability and those who are perceived to have a disability whether or not they actually do. However, a federal district court in Georgia recently held that Title VII does not prohibit religious discrimination where the plaintiff is incorrectly perceived to be a member of a religion (in this case, Buddhist) which he or she is not.

The case involved an assistant principal at a school who was a practicing Christian but was perceived to be a Buddhist because she practiced yoga and taught yoga-based mindfulness lessons to which many parents objected. She was reassigned to a diminished position following protests by parents. She sued, claiming religious discrimination. The federal judge assigned to the case dismissed it, holding that Title VII of the Civil Rights Act of 1964, which bars discrimination based on religion and other characteristics, “does not explicitly protect persons who are ‘perceived’ to be a member of a protected class” as does the ADA (Cole v. Cobb County School District (2018 BL 16655, N.D. Ga., No. 1:17-cv-1378, comp dismissed, 1/18/18)).

Union Membership and Union-Negotiated Wage Settlements Are Up Slightly From Previous Year
According to Bloomberg BNA, union membership increased overall in 2017 to 14.8 million workers from 14.6 million workers in 2016. About 10.7 percent of the total domestic workforce was unionized in 2017 public-sector worker unionization is currently at 34.4 percent, while private-sector unionization is at 6.4 percent). This is down significantly from 35 years ago when the Bureau of Labor Statistics started collecting comparable data. In 1983, 20.1 percent of the overall workforce — some 17.7 million workers — was unionized. On the wages side, collectively bargained agreements in 2018 have recorded a 2.8 percent first-year increase thus far this year compared to a 2.7 percent first-year increase during the same period in 2017.