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:

Transgender Professor Seeks Preliminary Injunction Prohibiting State of Arizona Healthcare Plan From Denying Coverage for Medically Necessary Gender-Affirming Surgery

A professor at an Arizona state public college has filed suit seeking a preliminary injunction, which would prohibit the state healthcare plan he participates in from denying him coverage for a medically necessary gender-affirming surgery. The professor has sued under Title VII of the Civil Rights Act and the Equal Protection Clause of the U.S. Constitution (Toomey v. Arizona (D. Ariz., No. 19-cv-35, Motion filed 9/1/20)).

The professor cited the recent U.S. Supreme Court’s decision earlier this year holding that Title VII’s prohibition of “discrimination on the basis of sex” applied to transgender status and prohibits workplace discrimination against transgender individuals. Moreover, he cited a recent decision of the federal district court in Alaska, holding that a healthcare plan refusing to cover transgender transition-related surgery violated Title VII. The professor also argued that the injunction should be issued against the state of Arizona’s healthcare plan in his favor because he is very likely to prevail in his argument that the exclusion of gender-affirming surgery violated the Equal Protection Clause of the U.S. Constitution.

The court already issued an order that the case can proceed as a class action and that the professor can appropriately represent the class of transgender employees adversely affected by the Arizona healthcare plan’s policies.

EEOC Issues Opinion Letter Limiting Its Power to Bring “Pattern or Practice” Bias Lawsuits

The Equal Employment Opportunity Commission (EEOC) has issued an opinion letter limiting its own power to bring lawsuits alleging “pattern or practice” discrimination lawsuits without following its own internal procedures. The EEOC concluded that it must make sure that its “pattern or practice” allegations are properly based on an underlying discrimination charge. The EEOC affirmatively stated that such “pattern or practice” allegations must not be based on simply a charge of general unlawful conduct, which is not tied to an actual discrimination charge.

Employer groups had argued that the employers should be entitled to the applicable procedural protections, which protect employers from having “otherwise lawful and legitimate” employment practices challenged. The lone Democratic EEOC member dissented and argued that the majority interpretation abandons decades of precedent, which had been useful in stopping severe civil rights violations.

Teacher Who Was Terminated After Reporting That Other Teachers Cheated on a State Teacher Exam Loses First Amendment Retaliatory Discharge Claim 

The U.S. Court of Appeals for the Sixth Circuit (covering Michigan, Ohio, Kentucky and Tennessee) recently affirmed a federal trial court decision dismissing an Ohio teacher’s First Amendment retaliatory discharge claim following his reports that other teachers cheated on a state teachers’ examination. The court ruled that the plaintiff’s report that other teachers cheated, which was rejected as false following an independent investigation of the allegations, was in any event part of the plaintiff’s job responsibilities as a proctor for the tests in question. Therefore, the court held that the plaintiff was speaking as part of his job and not as a private citizen. In these circumstances, the speech was not protected by the First Amendment (Fledderjohann v. Celina City School Board of Education (6th Cir., No. 20-032021, unpublished 8/27/20)).

The court concluded that the plaintiff’s essential job functions included proctoring the exams and upholding required security measures. Therefore, the plaintiff’s speech was essentially part of his job and does not rise to the level of First Amendment protection. The plaintiff argued that he contacted state authorities rather than the local school district officials, and therefore the speech was outside of his job responsibilities. The court rejected the argument, holding that the state was not an outside authority bringing the speech outside of his job.

EEOC Concludes That Workplace Testing for COVID-19 Does Not Violate the ADA as Long as an Employer’s Testing Is Consistent With CDC Guidance

On September 8, the EEOC issued a conclusion that employers involved in workplace COVID-19 testing of employees for health and safety reasons will not run afoul of the Americans with Disabilities Act (ADA) rules as long as the testing follows and is consistent with Centers for Disease Control and Prevention (CDC) guidelines. The EEOC pointed out that the ADA requires any mandatory workplace health testing to be “job related and consistent with business necessity.” According to the EEOC guidance, employers that follow CDC guidelines in administering mandatory workplace COVID-19 testing will meet the job-related and business necessity standard.

State and Local Whistleblower Protections for Employees Complaining of Pandemic-Related Workplace Health and Safety Problems Are Beginning to Become Law

Colorado, Virginia and the city of Philadelphia have become the first state and local jurisdictions to enact anti-retaliation laws to protect workers who raise whistleblower claims of workplace health and safety violations related to the pandemic. In addition, 22 other states, according to a Bloomberg law survey, have general whistleblower protections for employees complaining about workplace legal violations. These additional state statutes do not reference on the surface pandemic-related health and safety concerns, but may be susceptible to such an interpretation once the issue is litigated.

Whistleblower and/or retaliation lawsuits related to raising COVID-19 safety concerns have been filed in New Jersey, California and Florida and are pending. While no statute has passed in Michigan, an executive order has been issued in that state implying workplace protection for workplace safety complaints. Additionally, internal anti-retaliation employment policies could provide some protection to employees raising workplace safety concerns.

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.