HR and the Courts

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:

Trump Administration Justice Department and EEOC Take Different Positions on Whether Transgender Employees Are Covered by the Title VII Anti-Sex-Discrimination Statute

The Trump administration Justice Department told the Supreme Court in late October that the federal ban on sex bias on the job does not make it unlawful for an employer to discriminate based on gender identity.

Nonetheless, the acting chair of the EEOC, Victoria Lipnic, publicly stated that the current position of the EEOC is that the term “sex” in the anti-sex discrimination law goes beyond biological gender at birth, and hiring and firing and other workplace decisions based on gender identity are a form of sex discrimination.

The EEOC states that over the past five years it has obtained more than $6 million in judgments or settlements from employers that have allegedly discriminated against gay and transgender workers.

University of Wisconsin-Platteville Prevails in Alleged Race and National Origin-Related Tenure Denial and Termination Litigation

The University of Wisconsin-Platteville recently received a favorable decision from a U.S. federal district court judge who dismissed a former professor’s race and national origin discrimination claims regarding tenure denial and employment termination brought under the Civil Rights Act (Omachonu v. Shields (W.D. Wis., 15-cv-069-wmc, 3/5/18)).

The plaintiff alleged discrimination by her former supervisor, who retired two years before the chancellor decided not to recommend the plaintiff for tenure. The plaintiff stated that the supervisor did not like her teaching style; the judge ruled that while that might be true, the plaintiff failed to connect this to discriminatory motive based on race or national origin.

Moreover, the chancellor’s decision was based largely on other decision makers who had no connection with the former supervisor and therefore erased any causal link between the former supervisor’s allegedly discriminatory action and the final decision not to recommend the plaintiff for tenure.

Harvard and University of Michigan Reach Tentative Agreements on New Labor Contracts

Last month, Harvard University came to a tentative three-year contract agreement with a union representing 5,100 clerical and technical employees. According to the Union of Harvard Clerical and Technical Workers, the new contract contains a 3.8 percent salary increase in the first year for all employees with at least one year of experience and 3.5 percent increases in both the second and third year of the contract. This was the 11th contract between Harvard and the union.

Separately, the University of Michigan reached a tentative agreement with the Michigan Nurses Association over a contract which will cover approximately 5,700 nurses working at the university’s healthcare facilities.