Complete text (7 pages) of proposed rule issued by the Equal Employment Opportunity Commission and published in the February 18 Federal Register. The proposed rule seeks to define the term “reasonable factor other than age” as used in the EEOC’s proposed rule issued March 31, 2008 revising rules under the Age Discrimination in Employment Act to reflect the holding of the U.S. Supreme Court in Smith v. City of Jackson, 544 U.S. 228 (2005). Specifically, the March 2008 proposed rule states that an employment practice that has an adverse impact on individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a “reasonable factor other than age". (RFOA). The proposed rule issued February 19 defines RFOA and lists factors to be used in determining whether an employment practice cited as being a RFOA is reasonable. A useful summary of the proposed rule is here.
The Ninth Circuit held that a state college did not violate Title IX in responding to a female student’s complaints of harassment by a male professor. Once the college was on notice of the complaints, it promptly investigated the student’s allegations and forced the professor to resign.
A federal district court in California has held that the refusal by state university officials to take a religious school’s high school biology course into consideration in deciding whether to admit its students did not violate the Free Speech Clause. There was no evidence of animus. The university’s expert witnesses opined that the biology textbooks characterized religious doctrine as scientific evidence, and would not adequately teach students the scientific principles, methods, and knowledge necessary for them to successfully study those subjects at the university.
For more than 30 years, the National Conference on Law and Higher Education has brought the nation’s best higher education experts together to share their insights on higher education law and policy. Our speakers will present a comprehensive schedule of topics such as:
Dilemma of prescription drugs on campus
Legacy of Brown in the Obama era
Legal issues and the economic crisis
Online communities: risks and rewards
Bullies on campus
New challenges for international study
And many other topics
Bob Smith is speaking at the Stetson Conference for the third straight year.
“The investigation’s 99-page report showed how a lack of oversight from the university’s president and athletic director allowed the basketball program to spin out of control.
One player who transferred to Binghamton received credit for courses like Bowling I and Theories of Softball, according to the report. An assistant coach and a player discussed cash payments and having the assistant write part of a paper for him.
And at a meeting with admissions officials, the report said, an athletic official asked, “Why do you care if we take six players who don’t attend classes?”
It was a drastic change for a university that over the years has built an academic reputation as the crown jewel of the State University of New York system.”
The school’s investigation cost more than $900,000!
U.S. Ninth Circuit Court of Appeals holds that plaintiffs alleging failure of a university to effectively accommodate the interests and abilities of female athletes under Title IX were not required to provide a pre-litigation notice and opportunity to cure the alleged violation before filing suit.
A swim team member could not prevail on negligent hiring and supervision claims regarding her coach’s training methods. Allegedly negligent actions of a university swim team coach were within the scope of his employment, thus defeating negligent hiring and supervision claims asserted against the university by a swim team member. The member claimed that her injury was caused by certain training methods employed by the coach.
The U.S. Court of Appeals for the Federal Circuit affirmed a decision of the Trademark Trial and Appeals Board which refused registration of the University of South Carolina’s Carolina Baseball logo mark and granted the University of Southern California’s motion for summary judgment on South Carolina’s counterclaim for cancellation of a trademark registration held by the USC.
Complete text (19 pages) of Final Consent Judgment in settlement of civil complaint brought against defendant institution by the Attorney General of New Jersey alleging that the institution, its president and board chairman mismanaged the institution’s finances and endowments and excessively compensated its president. The New Jersey Attorney General issued a press release summarizing the consent judgment.
Despite the long-held belief that American college students have a constitutional (perhaps even God-given) right to party, a U.S. District Court Judge ruled on January 22, 2010, that no such right exists. Party-loving students that rent homes in the seaside town of Narragansett, Rhode Island during the school year have been getting marked with a modern day “scarlet letter” – very large bright orange stickers on their residences identifying the house as a public nuisance. Once marked, the sticker must stay put until the end of the school year. Residents face a $100 penalty if they remove the sticker early, and fines increase for repeat offenses. The property owners, too, are subject to fines. The orange sticker ordinance was challenged by both renters and landlords. Two students argued the sticker led to their eviction and the suspension of one from playing in two collegiate hockey games. Three more said that the stickers got them sent before the university’s disciplinary board. Two landlords also complained they could not rent their houses because of the stickers. Unsympathetic, the judge ruled that “just as the Constitution does not recognize a generalized right of social association . . . it does not protect college house parties, no matter how many problems of the world may be solved at them.”
“Willis Wang, deputy general counsel and assistant secretary, has been named Boston University’s first vice president for global operations, a position that embodies the University’s plan to continue reaching beyond a local footprint. “
Murray v. Eastern Kentucky University, (Ky.App.)
January 14, 2010: Civil Rights - Former university employee failed to make prima facie case of discrimination against university based on gender. A former university employee failed to make a prima facie case of discrimination against the university based on gender. The employee was not qualified for the full-time position she sought, because she failed to obtain her doctorate degree within the probationary period under the contract. Furthermore, she failed to identify any other employee within the school where the employee taught who was similarly situated to her yet received more favorable treatment.
The public policy exception to the at will doctrine does not provide an employee a right of action against his or her employer merely because the employee complained about the employer’s inconsistent disciplinary actions or because the employer may have created impossible standards or discharged people without adequate investigation, says the federal district court in New Hampshire. Specifically, the court explained that “[i]n order to prevail, the plaintiff must establish “(1) [that] his termination was motivated by bad faith, retaliation or malice; and (2) that he was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn.” Because the employee was at will and because he failed to articulate any act or refusal to act that would have been supported by public policy, he saw his wrongful termination claim dismissed by the district court.
The EEOC announced this week that Fiscal 2009 ended with record numbers of disability, religion and national origin discrimination claims, while the number of age-related discrimination claims reached the second highest for that category in history. Meanwhile, the most frequently filed claims remained those alleging discrimination on the basis of race (36%), retaliation (36%) and sex (30%). The EEOC provides these and other statistics on its website.
(Manchester, NH | Boston, MA) – Nelson, Kinder, Mosseau & Saturley, P.C. is pleased to welcome Kirsten B. Wilson as Of Counsel to the firm. Ms. Wilson joins NKMS’s talented staff of attorneys from her previous position at the New Hampshire Attorney General’s Office.
While representing the State of New Hampshire as Senior Assistant Attorney General, Ms. Wilson worked in the Homicide Unit, most recently as lead counsel for the first capital murder case tried to conviction in New Hampshire in the last 50 years. Her extensive experience also includes matters of white-collar theft, public integrity offenses, and criminal appeals to the New Hampshire Supreme Court. Ms. Wilson’s familiarity with complex litigation includes detailed analysis of over one million pages of documents spanning periods of up to twenty years.
Kirsten graduated with Dean’s List honors from New England School of Law, where she was an editor for the Environmental Law Forum and a legal discussion supervisor for Boston High School. She has authored several scholarly articles in the New Hampshire Bar Journal, on a variety of topics. She was named by the Union Leader as a member of the “40 under 40” class of 2009.
On July 31st of this year, Ms. Wilson accepted an award for Outstanding Advocacy in Capital Cases from the Association of Government Attorneys in Capital Litigation’s (AGACL) Board of Directors. This honor was awarded on behalf of the New Hampshire Attorney General’s trial teams of State v. Brooks and State v. Addison. The ceremony was held at the annual AGACL conference in Miami, Florida. The AGACL receives hundreds of nominations each year for trial teams involved in death penalty cases from around the United States.
“Kirsten’s impressive experience and work ethic are a natural fit with the firm. She will work as a key player in our practice group dedicated to Professional Liability and Discipline, and we are pleased to have her aboard. We anticipate her experience and knowledge of the law, and her familiarity with complex matters, will greatly assist both current and potential clients of the firm,” said William Saturley, President of NKMS.
Chris Vrountas, Chair of the Employment Counseling and Litigation Group, offers the following:
Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"), which prohibits genetic information discrimination in employment, became effective on November 21, 2009. Essentially, GINA creates a new class of people protected from discrimination in the employment context. The law outlaws the use of any “genetic information” in the making of any employment decision whatsoever, and it outlaws “harassment” on the basis of a person’s “genetic information.” GINA defines harassment in much the same terms as harassment is defined under Title VII, making “severe and pervasive” conduct unlawful while not banning “teasing” or occasional “jokes.” To this extent, GINA’s mechanics should have the same look and feel as Title VII.
GINA does, however, introduce new concepts about which employers should be aware. First, GINA defines “genetic history” to include not only results from genetic testing but also information concerning one’s family medical history. The law also forbids employers to make any inquiry about any employee’s genetic information, allowing for only 6 narrow exceptions including 1) inadvertent disclosure, 2) information collected as part of a voluntary wellness program, 3) information collected as part of obtaining appropriate FMLA certification, 4) information collected from publicly available sources (so long as the employer has a non-discriminatory reason for collecting such information), 5) information collected as part of a legally required toxin exposure management program in the workplace (so long as employee participation is voluntary) and 6) information collected from DNA testing employees who handle DNA in their laboratories to ensure lack of contamination. GINA requires employers to keep such information in strict confidence.
A New Hampshire federal judge ruled this week that a plaintiff who alleges she was sexually abused by a teacher between the years 1978 and 1982 could maintain her lawsuit against the school district, despite a statute of limitations challenge by the school. The challenge came in the form of a motion to dismiss, in which the school district argued that there was no set of facts that could allow the plaintiff to prevail, given the three decade delay in filing.
The key to the judge’s ruling was the fact that the suit was brought against the school district, not the alleged abuser. The judge cited the plaintiff’s allegation that she was contacted by another alleged victim of the teacher in 2008, and then investigated and learned that the school allegedly had known about the teacher’s actions in the late 1970s or early 1980s and had done nothing. Citing the lenient standards necessary to survive a motion to dismiss, the judge allowed the case to move forward.
In the discovery phase, the school district will likely focus on the plaintiff’s actions through the intervening years to make the argument that the plaintiff “knew or should have known” of the school’s potential wrongdoing well before 2008. The plaintiff likely will still have a statute of limitations problem as New Hampshire law places a fairly strong duty on potential plaintiffs to investigate their injuries and identify all possible defendants once they are on notice they have a legal claim. Given the very serious allegations made by the plaintiff, however, the court’s willingness to give the plaintiff the chance to prove her right to recover seems understandable.
25-year-old Micah Fialka-Feldman has a cognitive impairment that hinders his ability to read and write. He participates in a special program for adults with disabilities who would not otherwise be able to meet the university’s entrance requirements. It’s designed to give him social skills in order to find a job. He pays a fee equal to full tuition but doesn’t earn grades. Two years ago, when he enrolled to live on campus, the university informed Fialka-Feldman that he was not eligible for dorm life because he’s not in a degree seeking program, arguing that if Fialka-Feldman and others in such programs could live on campus it would change campus culture.
A United States District Judge in Michigan has ruled against the college. The court’s opinion is linked here.
The U.S. Commission on Civil Rights has selected 19 colleges and universities for its controversial probe of whether colleges are favoring male applicants in admissions decisions, and whether any such preference is appropriate. The commission, seeking to minimize costs, selected colleges close to Washington, but included a range of four-year institutions, including public and private, historically black and predominantly white, religious and secular, and institutions of varying degrees of admissions competitiveness.
