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  • Date:

    Huang v. The Ohio State Univ. (6th Cir. Aug 28, 2024)

    Opinion vacating the trial verdict and remanding. Plaintiff, a former Ph.D. engineering student at the Ohio State University brought claims of Title VII quid pro quo sexual harassment and retaliation, and a claim for unwanted sexual touching in violation of her Fourteenth Amendment due process right to bodily integrity against the University and her former advisor. Plaintiff alleged the former advisor sexually harassed and assaulted her throughout her Ph.D. candidacy and retaliated against her by failing her candidacy exam. The Sixth Circuit found that the district court “mishandled” plaintiff’s claims against both the University and her former advisor and abused its discretion. Initially, the Circuit held that (1) plaintiff’s status as a student and as an employee are not mutually exclusive, (2) application of the 13-factor common law agency test showed a dispute of material fact as to if plaintiff was an “employee” of the University for Title VII purposes, and (3) a jury must resolve the factual discrepancies over “where and when” plaintiff worked before the district could decide as a matter of law whether she was an employee when subjected to alleged harassment. Next, the Court adopted the majority view that plaintiff pushing her former advisor away to resist his alleged advances is a form of opposition to improper touching (even if she did not vocalize her objection), which meets the “protected activity” prong of a prima facie Title VII retaliation claim, and thus, on remand the district must proceed with the “nondiscriminatory reason” and “pretext” steps of the McDonnell Douglas burden shifting framework. Finally, the Circuit found that the district erred and violated plaintiff’s “substantial rights” by applying an overly narrow view of relevancy to exclude multiple categories of evidence at trial including circumstantial evidence of harassment, entitling plaintiff to a new trial.  

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Retaliation | Sex Discrimination

  • Date:

    U.S. Dep’t of Ed. v. Louisiana, 603 U.S. ____ (2024).

    U.S. Supreme Court per curium denial of applications for stay in Department of Education v. Louisianna, No. 24A78 and Cardona v. Tennessee, No. 24A79. Multiple states filed suit against the U.S. Department of Education, Office for Civil Rights (OCR) challenging the Final Rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, on multiple grounds, including arguing that the Rule exceeds the four corners of the Congressionally implemented statutory text, and sought preliminary injunction. The U.S. Districts of Louisiana and Kentucky granted plaintiffs’ preliminary relief against enforcement of the Rule in the plaintiff states. The U.S. Courts of Appeal for the Fifth and Sixth Circuits declined to stay the respective injunctions. Subsequently, the Department made emergency application to the Supreme Court seeking partial stays of the PIs pending resolution of the appeals before the Circuits. The Supreme Court reasoned that plaintiffs were entitled to preliminary injunctive relief on a trio of provisions of the Rule regarding the scope of the definition of sex discrimination, which includes discrimination on the basis of sexual orientation and gender identity, rejected the Department’s request to sever those provisions and implement the remainder of the Rule, and thus, denied the emergency applications. 

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination | Students | Title IX & Student Sexual Misconduct

  • Date:

    Foley v. Drexel Univ. (E.D. Pa. July 25, 2024)

    Opinion granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff, a tenured professor in the Department of English and Philosophy at Drexel University, brought discrimination and retaliation claims against the University and her department chair, alleging a pattern of “academic bullying” that “she contends is commonly perpetrated against productive female scholars.” In granting summary judgment in favor of the University on plaintiff’s hostile work environment claim, the court found that her assertions of class cancellations, questions about her promotion to full professor, delayed computer upgrades, and various academic slights were insufficient to raise a question of severe or pervasive harassment. It similarly found that her retaliation claims failed because she was unable to show that any of the allegedly retaliatory actions were either materially adverse or causally connected to her discrimination complaints. It permitted her to proceed on her Equal Pay Act claim, finding a dispute of fact as to whether the salary of a male colleague with a lower academic rank was due to his past service in administrative roles.

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Retaliation | Sex Discrimination

  • Date:

    Beny v. Univ. of Mich. Bd. of Regents (E.D. Mich. Jul. 17, 2024)

    Opinion and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a tenured professor of law at the University of Michigan who is African American and has been a critic of what she perceived as inequitable practices, brought discrimination and retaliation claims against the University and a law school Dean after she was disciplined for repeated allegedly threatening, unprofessional, and disruptive communications to faculty and staff, suspended from teaching, and made ineligible for various benefits after she was found to have abandoned her duties and retaliated against students in response to anonymous student complaints related to her teaching. In granting summary judgment in favor of the University, the court found plaintiff’s claims all failed at the pretext stage because she did not dispute the nature of her communications, for which she had been the subject of multiple threat assessments, and failed to show that the University’s explanation for her suspension, which relied primarily on her abandonment of her class, was the result of an inappropriate attention to her actions.   

    Topics:

    Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Louisiana v. Equal Emp’t Opportunity Comm’n (W.D. La. June 17, 2024)

    Memorandum Order granting-in-part and denying-in-part Plaintiffs’ Motions for Preliminary Injunction. Plaintiffs, Louisiana, Mississippi, and four Catholic organizations, sued the EEOC and sought to enjoin the EEOC’s Pregnant Workers Fairness Act (PWFA) Final Rule, alleging that it violated the Administrative Procedure Act and Constitution when it included abortion as a “pregnancy related condition” requiring workplace accommodations and objecting, in particular, to accommodations for purely elective abortions. The court found that the States had standing based on “harm in the form of regulatory burden, increased costs to implement the abortion accommodation mandate, and damage to their sovereignty” and that Catholic organizations had standing based on the conflict with their religious beliefs. It then found the EEOC likely exceeded its statutory authority, noting (1) it categorized “abortion” as a “condition” rather than a “procedure” and (2) the Supreme Court in Dobbs permitted states to regulate abortion. It also found the mandatory accommodation likely interferes with state sovereignty to enforce abortion laws and violates the States’ First Amendment right to control their own messaging on abortion. Similarly, the Catholic organizations were likely to succeed in their assertion that the Final Rule’s narrow religious exemption will unconstitutionally burden them with protracted investigations on a case-by-case basis. The injunction applies to the plaintiff States, all employees of covered entities whose primary duty station is in Louisiana or Mississippi, and the Catholic organization plaintiffs.

    Topics:

    Discrimination, Accommodation, & Diversity | Pregnancy Discrimination | Sex Discrimination

  • Date:

    Tennessee v. Equal Emp’t Opportunity Comm’n (E.D. Ark. June 14, 2024)

    Memorandum Opinion and Order denying Plaintiffs’ Motion for Preliminary Injunction as moot and dismissing for lack of standing. Plaintiffs, seventeen states where almost all abortions are illegal, sued the EEOC and sought a nationwide injunction to stay the new Final Rule implementing the Pregnant Workers Fairness Act (PWFA) of 2022 while the case proceeds. The PWFA provides, among other things, that covered employers must provide reasonable accommodations for “known limitations” related to pregnancy or “related medical conditions.” The Final Rule and Interpretive Guidance include abortion among the “related medical conditions.” The States challenge that inclusion as it might require accommodations for elective abortion and claim that (1) the EEOC exceeded the statutory authority, (2) the inclusion offends the Constitution, and (3) it violated the Administrative Procedure Act. In dismissing the complaint, the court found the States lacked standing. It found that their assertion of sovereign harm failed because (1) the threat of an enforcement action is not imminent and (2) the injury is not redressable, as an aggrieved employee could still sue under the PWFA even if the Final Rule were enjoined. Their economic harm theory failed because (1) the alleged compliance costs related specifically to illegal, elective abortions are neither concrete nor particularized and (2) the alleged compliance costs are not fairly traceable to a threat of enforcement. The court also noted that the States, as a threshold matter, failed to show that any alleged injury was irreparable. It did not decide the likelihood of success on the merits.

    Topics:

    Discrimination, Accommodation, & Diversity | Pregnancy Discrimination | Sex Discrimination

  • Date:

    Doe v. N.Y. Univ. (S.D. N.Y. May 30, 2024)

    Opinion & Order granting Defendant’s Motion to Dismiss. Plaintiff, a rising second-year law student at New York University who describes himself as a heterosexual white male who plans to apply to the NYU Law Review, brought Title VI and Title IX claims against the University challenging the Law Review’s selection process in light of the Supreme Court’s decision in the Students for Fair Admissions cases. While the Law Review previously designated 12 of its 50 positions to be filled by a process through its Diversity Committee, it does not currently mention the alleged “diversity set-aside” and instead requires each applicant to submit a statement of interest that it describes as “an opportunity for applicants to provide the Selection Committee a more comprehensive view of who [they] are as an individual.” In granting the University’s motion to dismiss, the court found plaintiff’s assertion that the Law Review could glean information by which it might discriminate from the statements of interest was insufficient to show an injury. It also determined plaintiff failed to state a claim, finding his allegation of a discriminatory selection process both conclusory and unsupported by the facially neutral policy, which did not identify a preference for students from a protected class. Finally, the court noted that absent factual allegations as to what role the institution played in the operations of the student-run Law Review, the complaint failed to allege intentional discrimination by the University.  

    Topics:

    Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Race and National Origin Discrimination | Sex Discrimination

  • Date:

    Denham v. Ala. State Univ. (11th Cir. May 16, 2024) (unpub.)

    Opinion affirming summary judgment in favor of the University. Plaintiff, who is a white female and a former professor of Occupational Therapy at Alabama State University, brought discrimination claims against the University after she was not hired for an Associate Dean position. The position required qualifications appropriate for the rank of associate professor, and though the successful candidate had only one year of teaching experience, the provost deemed him qualified by virtue of his clinical experience. In affirming summary judgment in favor of the University, the Eleventh Circuit found plaintiff’s assertion that she was more qualified for the position by virtue of her teaching experience insufficient to raise a question of pretext regarding the University’s explanation that it valued the successful candidate’s clinical experience and strong performance in his interview. 

    Topics:

    Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Gililland v. Sw. Or. Cmty. Coll. (9th Cir. May 6, 2024) (unpub.).

    Memorandum affirming-in-part and reversing-in-part partial judgment in favor of the Plaintiff. Plaintiff, a former student at Southwestern Oregon Community College who disclosed to an instructor her past employment as an adult actress and was subsequently dismissed from the nursing program for plagiarism and failing grades, sued alleging that instructors graded her unfairly and enforced their plagiarism policy only against her when plagiarism was known to be common in the program. A jury found that the College had not discriminated against plaintiff in violation of Title IX but had breached a contractual obligation in the application of its policies. The jury awarded her $735,417 in economic damages and $1,000,000 in noneconomic damages. On review of denial of a renewed motion for judgment as a matter of law, the Ninth Circuit vacated the noneconomic damages award, noting that in the absence of physical pain, Oregon does not permit recovery of emotional distress damages for breach of contract.  

    Topics:

    Discrimination, Accommodation, & Diversity | Sex Discrimination

  • Date:

    ACE Regulation Summary of the Title IX Final Rule (Apr. 29, 2024)

    Regulation Summary from the American Council on Education (ACE) of the U.S. Department of Education’s Title IX Final Rule. The summary highlights key provisions in of the Final Rule, including its effective date, scope and jurisdiction changes, protections for transgender students, the change to the standard for when the institution is on notice, updated reporting obligations, major changes to investigation and adjudication procedures, new pregnancy-related provisions, training requirements, and expanded Title IX Coordinator responsibilities.  

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination | Students | Title IX & Student Sexual Misconduct

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