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:

NYU Prevails in ERISA Class Action Case

NYU received a complete victory in the first of more than approximately a dozen ERISA class action cases filed across the country to proceed to an actual trial. The case was tried in federal district court in New York City (Sacerdote et al. v. NYU (SDNY No. 1:16-cv-06284-KBF, Judgement, 7/31/18)).

The judge ruled that NYU prudently managed its record keepers, ran a prudent RFP process, managed to obtain lower fees when complete consolidation of the plans was impractical, closely monitored investment performance of investment alternatives, and was not imprudent in allegedly failing to remove two allegedly underperforming investment alternatives. Commentators have concluded that the judge looked favorably on NYU’s expert witnesses.

The University of Pennsylvania and Northwestern University have also received favorable judgements, but those cases never went to trial, as the respective judges dismissed them on summary judgement.

Former Business School Professor Wins $1.3 Million Jury Verdict in Sexual Harassment/Retaliation Case

A federal district court jury in New York City rendered a $1.3 million verdict against Columbia University in response to a former professor’s claims that she was continually harassed by a senior professor, including being ridiculed in dozens of emails to economic journals, Federal Reserve Board employees and other industry players, in some of which the professor called her “crazy” and “evil.” Often, the emails were sent from the senior professor’s university email account. The jury awarded the plaintiff $750,000 in compensatory damages and $500,000 in punitive damages (Ravina v. Columbia University (SDNY, Case No. 16-cv-2137, 7/26/18)). The plaintiff had asked for $16 million in damages.

The jury of four men and four women concluded that Columbia had not retaliated against the former professor but held the university responsible for the actions of the senior professor who was accused of harassment and retaliation and sabotaging the plaintiff’s attempts for tenure (which was denied allegedly because of the senior professor’s actions). The plaintiff claimed that the tenure denial had a significant and negative economic impact on her career.

Appeals Court Grants Campus Police Officer a Jury Trial Over Retaliation/Hostile Work Environment Claims After Supervisor Used a Racial Slur

The U.S. Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin and Indiana) reversed a federal district court trial judge’s decision and granted a campus police officer the right to proceed to a jury trial over his claim of hostile work environment and retaliation based on race. The court ruled that in order to obtain a jury trial, the applicable standard is whether the alleged activity was severe “or” pervasive, not severe “and” pervasive. In this case, the allegation was that the supervisor used the N-word.

The trial court ruled the use of the word was not pervasive and denied the jury trial. The appeals court reversed, holding that the use of the word even occasionally is severe, given the history of the word in America, and granted the plaintiff the right to move forward to a jury trial. (Robinson v. Board of Trustees of the University of Illinois (2018 BL 234668, 7th Cir., No. 16-3390, 7/2/18)).

The plaintiff complained that he was subjected to heightened scrutiny of his job performance after he complained about the alleged hostile work environment related to the use of the racial epithet.

Disabled Teacher Gets Jury Trial Over School’s Failure to Consider Hiring Someone to Assist in Performance of Essential Job Functions

The U.S. Court of Appeals for the D.C. Circuit (covering the District of Columbia and federal agency appeals throughout the country) reversed a trial judge’s dismissal of an Americans with Disabilities Act (ADA) case over an employer’s alleged refusal to consider hiring an assistant to help the plaintiff perform essential job functions. The appeals court sent the case back for a jury trial (Hill v. The Association for Renewal of Education (2018 BL 266982, DC Cir., No. 15-7064, 7/27/18)).

It is commonly accepted that an employer is not required by the ADA to accept a request for an accommodation to hire someone to perform an employee’s essential job functions. Here, the case was a little different and involved a teacher with one leg who had trouble standing for long periods of time.  He claimed to have some difficulty in supervising and disciplining students in and outside of the classroom because of his limited mobility and requested an assistant who could assist him in this function. He claimed that he was able to fulfill the function, but that he would be able to better do it with some assistance. The court held that dismissing that part of the case was an error. The plaintiff also claimed he was the only teacher in the program without an assistant.

The plaintiff had already won a verdict for $40,000 against the same employer following the employer’s refusal to accommodate his request to teach on a lower floor because of his disability. He was assigned a third-floor classroom and requested but was denied an accommodation to move his classroom to the first floor.

NLRB Will Push for More Mediation and Settlements in Lieu of Full-Blown Trials

The National Labor Relations Board (NLRB) launched a pilot project in July 2018 to enhance its alternative dispute resolution system by allowing parties access to a mediator in all cases as an attempt to settle the case short of trial. The new NLRB general counsel announced in an internal memo shortly after his appointment that he would like more emphasis on settlements in lieu of litigation.

The business community applauded the effort as a way of allowing employers without deep pockets to afford litigation to seek a reasonable settlement. The worker advocate community has criticized the program, claiming that it can disadvantage workers in many situations, even though they bear no cost for filing and pursuing a claim.