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.
Appeals Court Rules That Entire Sexual Harassment and Assault Lawsuit Shall Remain Subject to Federal Court Jurisdiction Despite Arbitration Agreement
The 6th U.S. Circuit Court of Appeals ruled in a 2-to-1 decision that when Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), it intended that workers could keep their entire lawsuit out of arbitration and in the public eye, not just the sexual harassment or assault allegations (Bruce v. Adams & Reese (6th Cir. 3/3/26)). This is a case of first impression and no other Court of Appeals has ruled to the contrary at this point.
The appeals court ruled that because Congress used the word “case” not “claim” in the EFAA, the entire “case” shall remain subject to federal court review. If there becomes a split in circuits, it would likely be resolved by the U.S. Supreme Court. While the 2nd Circuit is considering the issue, this decision is the only appeals court decision to date on the scope of the EFAA. While it is not binding on other circuits, it remains the persuasive authority on the issue.
Artificial Intelligence Use in Arbitration Subject to Criticism and Possible State and Federal Limitation
The American Arbitration Association has unveiled the voluntary use of AI in low-value, document-only construction cases with the launch of its AI Arbitrator tool. Early case law questions whether such use exceeds an arbitrator’s authority in delegating decision making. Commentators question whether AI-generated arbitration decisions will be enforceable under the Federal Arbitration Act (FAA).
In late January, the California Senate passed a bill prohibiting arbitrators from delegating authority to generative AI tools. The bill is before the California Assembly for approval. Other states are considering similar measures. Enforceability is yet to be tested in federal court under the FAA. The one case brought in federal court was dismissed because it did not arise under the FAA and there was no federal question jurisdiction. Also, it did not meet the $75,000 minimum controversy standard for diversity cases.
OSHA’s Loss of Inspectors To Limit Proactive Safety Inspections in Coming Year
According to Department of Labor records published by Bloomberg, OSHA has lost more than 100 safety inspectors due to government cutbacks and resignations since the beginning of the new Trump administration. This translates into an inspector total of approximately 1,700 inspectors covering 144 million workers in the U.S.
Commentators conclude that this will limit OSHA inspections to those responding to workplace accidents, fatalities, injuries and complaints. Routine, proactive workplace safety inspections — in which the agency inspects known hazards and enforces possible OSHA citations and workplace safety failures in the absence of actual accident or injury — may likely not occur in the year to come.
Federal Judge Dismisses Workplace Harassment Charges Filed Against University – Judge Rejects Microaggression Theory
A federal district court judge who presided over a non-jury bench trial brought by a university compliance chief claiming that she faced racial workplace harassment at the hands of a white male subordinate, dismissed the complaint and ruled in favor of the university (Gunter v. Drexel University (2016 BL 41040, E.D. Pa. No. 2:23 cv 02451, 2/9/26)).
The judge rejected the plaintiff’s “microaggression theory.” Under the microaggression theory, some courts have found actionable discrimination following comments or actions that may reveal “unconscious” or “unintended” prejudice.
The judge concluded that the plaintiff was “hypersensitive” in her workplace relationships. The judge also concluded that there was no evidence of slurs and that the plaintiff and subordinate got along in non-work-related matters. Finally, the judge stated that while the line was difficult to draw in these situations, the interactions were nonetheless “innocent workplace misunderstandings” rather than actionable workplace harassment.
EEOC Takes Position That One Higher Paid Man Is Sufficient for an Equal Pay Act Claim of Gender Discrimination – Negligence Standard Should Apply to Employers Accused of Allowing Third-Party Sexual Harassment
The Equal Employment Opportunity Commission (EEOC) has taken the position in an amicus brief filed before the 3rd U.S. Circuit Court of Appeals that the Equal Pay Act is violated if the plaintiff shows that one man is paid more than a woman in the same job. The EEOC’s position is that it is not necessary to show a class of men are paid more than a woman for the same job (Cartee-Haring v. Central Bucks School District (3rd Cir. No. 25-02540, amicus brief filed 2/5/26)).
The issue is before the 3rd Circuit for decision. Two other Courts of Appeals have already held that if a single worker of the opposite sex is paid more than a female worker in the same job, the Equal Pay Act is violated.
In a separate case, the EEOC has taken the position before the 3rd U.S. Circuit Court of Appeals that the negligence standard should apply to employers accused of sexual harassment where the perpetrator is a third party such as a student, customer, patient or other third party. The case was filed against a university by a teaching assistant who accused a student of harassing her (O’Neill v. Trustees of the University of Pennsylvania (3rd Cir. 25-03310, 2/10/26)).
Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.