Assignment 5-1

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institutions defined in Title VII (41 C.F.R. § 60-1.5(a)(5)). While the regulations contain a partial exemption for state and local government contractors, “edu- cational institutions and medical facilities” are specifically excluded from this exemption (41 C.F.R. § 60-1.5(a)(4)). The enforcing agency may hold compli- ance reviews (41 C.F.R. § 60-1.20), receive and investigate complaints from employees and applicants (41 C.F.R. §§ 60-1.21 to 60-1.24), and initiate admin- istrative or judicial enforcement proceedings (41 C.F.R. § 60-1.26(a)(1)). It may seek orders enjoining violations and providing other relief, as well as orders ter- minating, canceling, or suspending contracts (41 C.F.R. § 60-1.26(b)(2)). The enforcing agency may also seek to debar contractors from further contract awards (41 C.F.R. § 60-1.27(b)).

The requirements of the Executive Orders are enforced by the Office of Fed- eral Contract Compliance Programs (OFCCP), located within the U.S. Depart- ment of Labor. The regulations require each federal contractor subject to the Executive Orders to develop a written affirmative action program (AAP) for each of its establishments. In November 2000, a provision was added at 41 C.F.R. § 60-2.1(d)(4) that permits federal contracts to develop AAPs organized by busi- ness or functional unit rather than by geographical location. A procedural direc- tive for determining whether a college or university is eligible to submit a functional AAP can be found on the OFFCP Web site at http://www.dol.gov/esa.

The regulations interpreting the Executive Orders and explaining the enforcement process were revised, and a final rule was published at 165 Fed. Reg. No. 219 (November 13, 2000). The final rule can be accessed from the OFFCP Web site.

The primary remedy for violation of the Executive Orders is cutoff of federal funds and/or debarment from future contracts. Individuals alleging employment discrimination by federal contractors have sought to file discrimination claims in court, but have been rebuffed. For example, in Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975), two women faculty members filed sex discrimina- tion claims against the university under authority of the Executive Orders. Their claims were dismissed; the court found no private right of action in the Execu- tive Orders. Similar outcomes occurred in Braden v. University of Pittsburgh, 343 F. Supp. 836 (W.D. Pa. 1972), vacated on other grounds, 477 F.2d 1 (3d Cir. 1973), and Cap v. Lehigh University, 433 F. Supp. 1275 (E.D. Pa. 1977).17

Sec. 5.3. The Protected Classes

5.3.1. Race. As noted above, race discrimination claims may be brought under Title VII (see Section 5.2.1 of this book), Section 1981 (Section 5.2.4), the U.S. Constitution (Section 5.2.7), or federal Executive Orders (Section 5.2.8). Race discrimination claims may also be brought under state nondiscrimination

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17Cases related to private rights of action under the Executive Orders are collected in Phillip E. Hassman, Annot., “Right to Maintain Private Employment Discrimination Action Under Executive Order 11246, as Amended, Prohibiting Employment Discrimination by Government Contractors and Subcontractors,” 31 A.L.R. Fed. 108.

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laws.18 In “disparate treatment” race discrimination claims (see Section 5.2.1 above), as in other employment discrimination claims, an employee must demonstrate that an adverse employment action was motivated by the individ- ual’s race rather than by some “neutral” reason unrelated to race. Because direct evidence of race discrimination (in the form of written or oral racist statements, for example) is very rare, most plaintiffs must use indirect methods of proving disparate treatment.

An individual alleging race discrimination may demonstrate that “similarly situated” employees of a different race were treated better than the plaintiff. If two employees are similar in skills, experience, job responsibilities, and job per- formance, but are of different races, race discrimination may be the reason that one employee experiences an adverse employment action while the similarly sit- uated employee does not. However, if the plaintiff cannot identify a “compara- tor,” proving race discrimination will be very difficult. For example, in Jackson v. Northeastern Illinois University, 2001 U.S. App. LEXIS 25339 (7th Cir. 2001) (unpublished), an African American building service worker fired for hitting his supervisor was unable to identify a Caucasian employee who had engaged in the same misconduct but was not terminated. In the absence of such a “similarly situated” employee, said the court, the plaintiff could not prevail.

As noted in the discussion of Title VII in Section 5.2.1, colleges typically defend against discrimination claims by asserting that there was a “legitimate nondiscriminatory reason” to support the adverse employment action. Docu- mented poor performance of the plaintiff will typically allow the college to pre- vail unless there is direct evidence of race discrimination or a similarly situated coworker of a different race who is treated more favorably. (For cases involving successful defenses against alleged race discrimination by the use of docu- mented poor performance, see Fortson v. Embry-Riddle Aeronautical University, 1998 U.S. Dist. LEXIS 20701 (N.D. Miss. 1998); and Chambers v. McClenney, 1999 U.S. App. LEXIS 329 (10th Cir. 1999) (unpublished).) Lack of funds may also provide a legitimate nondiscriminatory reason for a termination if there is no direct evidence of race discrimination (see Lewis v. Chattahoochie Valley Community College, 136 F. Supp. 2d 1232 (M.D. Ala. 2001)).

The plaintiff must identify a specific adverse employment action that has been taken, allegedly on the basis of the plaintiff’s race. Typically, termination, discipline, demotion, or reducing an individual’s pay are adverse employment actions. However, an involuntary lateral transfer that does not reduce an indi- vidual’s salary may not be viewed as an adverse employment action (see, for example, Adams and Moore v. Triton College, 2002 U.S. App. LEXIS 8622 (7th Cir. 2002) (unpublished)).

5.3.1. Race 407

18Cases involving race discrimination are collected in J. F. Ghent, Annot., “Racial Discrimination in Hiring, Retention, or Assignment of Teachers—Federal Cases,” 3 A.L.R. Fed. 325. See also Donald T. Kramer, Annot., “What Constitutes Reverse or Majority Race or National Origin Dis- crimination Violative of Federal Constitution or Statutes—Public Employment Cases,” 168 A.L.R. Fed. 1; and Donald T. Kramer, Annot., “What Constitutes Reverse or Majority Race or National Origin Discrimination Violative of Federal Constitution or Statutes—Private Employment Cases,” 150 A.L.R. Fed. 1.

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Harassment on the basis of race is a form of race discrimination, and federal courts have applied Supreme Court precedent from sexual harassment cases (see Section 5.3.3.3) to claims of racial harassment. Racial harassment claims may be brought under Title VII or Section 1981; the latter statute’s lack of a cap on damages makes it likely that plaintiffs may file under both laws, as well as state nondiscrimination laws. A dramatic example of a plaintiff’s success occurred in Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001), cert. denied, 535 U.S. 1018 (2002), in which the only African American employee of a small company quit after five months because of coworkers’ daily racial jokes, which were observed and condoned by Swinton’s supervisor. The court upheld a $1 million punitive damage award; his back pay award was less than $6,000. Conflicts between a supervisor and subordinate of different races, however, will typically not support a claim of racial harassment unless actual racist language is used. For example, in Trujillo v. University of Colorado Health Sciences Cen- ter, 157 F.3d 1211 (10th Cir. 1998), a Hispanic employee’s claim of racial harass- ment by his African American supervisor was rejected by the court, which characterized the difficulties he faced as a “personality conflict” and upheld summary judgment for the college.

Tribal colleges are immune from race discrimination lawsuits, according to a federal appellate court. In Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040 (8th Cir. 2000), the court ruled that because Indian tribes enjoy sovereign immunity, tribal colleges may not be sued in federal courts. The court reversed a jury award to two former employees of the college who alleged that their one-year employment contracts had not been renewed because of their race.

5.3.2. National origin and alienage. Claims of national origin dis- crimination may be brought under Title VII, the U.S. Constitution, or federal Executive Orders and, sometimes, under Section 1981. Title VII prohibits discrimination “because of [an] individual’s . . . national origin” (42 U.S.C. § 2000e-2(a))—that is, discrimination based on the employee’s nationality. In Briseno v. Central Technical Community College Area, 739 F.2d 344 (8th Cir. 1984), for example, the court held that the defendant had intentionally dis- criminated against the plaintiff, a Mexican American, because of his national origin. National origin claims are frequently combined with claims of race and/or religious discrimination (Sections 5.3.1 & 5.3.6).

The U.S. Supreme Court has ruled that the statutory term “national origin” does not cover discrimination on the basis of alienage—that is, discrimination against employees who are not citizens of the United States (Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973)). But the Court cautioned in Espinoza that a citizenship requirement may sometimes be part of a scheme of, or a pretext for, national origin discrimination and that “Title VII prohibits discrim- ination on the basis of citizenship [alienage] whenever it has the purpose or effect of discriminating on the basis of national origin.” The Court also made clear that aliens, as individuals, are covered by Title VII if they have been dis- criminated against on the basis of race, color, religion, or sex, as well as national

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origin. To implement the statute and case law, the EEOC has issued guidelines barring discrimination on the basis of national origin (29 C.F.R. Part 1606).

Claims of alleged national origin discrimination brought under Title VII are evaluated under the McDonnell Douglas test described in Section 5.2.1. An illus- trative case is Castro v. Board of Trustees of the University of Illinois, 1999 U.S. Dist. LEXIS 17303 (N.D. Ill. 1999), in which an individual of Puerto Rican descent applied for and was denied twenty-seven jobs at the University of Illi- nois at Chicago. The court ruled that Castro had established a prima facie case of national origin discrimination for three of the twenty-seven jobs because the individuals who were hired, who were not of Puerto Rican descent, had simi- lar or lesser credentials than Castro. The court granted summary judgment to the university on Castro’s discrimination claims for twenty-four of the twenty- seven positions, but denied summary judgment with respect to the three for which Castro had established a prima facie case.

Although Espinoza prevents plaintiffs from attacking citizenship (alienage) discrimination under Title VII, such plaintiffs may be more successful making constitutional claims. In Chacko v. Texas A&M University, 960 F. Supp. 1180 (S.D. Tex. 1997), affirmed without opinion, 149 F.3d 1175 (5th Cir. 1998), a Canadian citizen was terminated shortly after she was hired, allegedly because coworkers complained that the university was hiring “foreigners.” With respect to her Title VII claim of national origin discrimination, the federal court awarded the university summary judgment, characterizing it as “citizenship” discrimi- nation rather than national origin discrimination. But the court allowed the plaintiff’s constitutional claims against individuals (but not against the institu- tion) to proceed under Sections 1981 and 1983 (see Section 5.2.4 of this book). Her claims against the institution were dismissed on Eleventh Amendment immunity grounds.

Employers’ requirements that employees speak only English while at work have stimulated claims of national origin discrimination. Although the EEOC guidelines state that English-only rules are a form of prohibited discrimination under Title VII (29 C.F.R. § 1606.7), most federal courts have upheld these rules if the employer has articulated a legitimate business reason (for example, cus- tomer service, safety) for the rules. (See, for example, Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980); and Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993).) A federal trial court ruled that Cornell University could impose a requirement that employees speak English on the job because the interpersonal conflicts between the plaintiff and her coworkers made the requirement a business necessity (Roman v. Cornell University, 53 F. Supp. 2d 223 (N.D.N.Y. 1999)). However, if the court finds that the rule was applied in a manner indicating national origin discrimination rather than a legitimate business concern, the court may rule for an employee terminated for violating the rule. For example, the court in Saucedo v. Brothers Wells Service, 464 F. Supp. 919 (S.D. Tex. 1979), ruled that an employee terminated for speaking two words of Spanish on the job had been a victim of national origin discrimination.

The Arizona Supreme Court invalidated a state constitutional provision requiring state employees to speak only English on the job as a violation of the

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First Amendment of the U.S. Constitution (Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998), cert. denied, 525 U.S. 1093 (1999)). (The uncertain legality of English- only rules and a proposal to fully implement the EEOC guidelines are discussed in Mark Colon, Note, “Line Drawing, Code Switching, and Spanish as Second- Hand Smoke: English-Only Workplace Rules and Bilingual Employees,” 20 Yale L. & Pol’y Rev. 227 (2002).)

State laws requiring colleges and universities to certify that non-native U.S. residents who are teaching assistants are proficient in English may be chal- lenged as a violation of Title VII or Section 1981, in that no such standards are applied to individuals born in the United States. Testing the language proficiency of all teaching assistants should prevent discrimination claims. A statement in the institution’s college catalog that instruction will be conducted in English would make English proficiency a bona fide occupational qualification, and as long as that requirement is applied to all instructors, it should not run afoul of the nondiscrimination laws.19 Similarly, a requirement that unaccented English is required for a certain position would also be vulnerable to a national origin claim if the individual could be understood.20 (For a discussion of bias against individuals with accents, see M. Matsuda, “Voices of America: Accent, Antidis- crimination Law, and a Jurisprudence for the Last Reconstruction,” 100 Yale L.J. 1329 (1991).)

The terrorist attacks of September 11, 2001, have stimulated increased atten- tion to potential national origin discrimination. The EEOC, the U.S. Department of Justice, and the U.S. Department of Labor have issued a “Joint Statement Against Employment Discrimination in the Aftermath of the September 11 Terrorist Attacks,” as well as a set of questions and answers concerning the employee rights and employer responsibilities regarding Muslims, Arabs, South Asians, and Sikhs. These statements may be found at http://www.eeoc.gov.

In addition to Title VII and Section 1981, the Immigration Reform and Con- trol Act of 1986 (Pub. L. No. 99-603, 100 Stat. 3359, codified in scattered sec- tions of 8 U.S.C.) may pose potential liability for college and universities with regard to race and national origin. The Act prohibits employers from hiring workers who cannot document that (1) they are in the United States legally and (2) they are legally entitled to work. Employers must ask applicants for proof of both elements, and civil penalties may be assessed against the employer for each undocumented worker hired. The law also forbids discrimination against aliens who are lawfully entitled to work and describes the complaint procedures available through the U.S. Department of Justice (8 U.S.C. § 1324b). The law is discussed in more detail in Section 4.6.5.

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19Cases related to requiring English proficiency are collected in Tim A. Thomas, Annot., “Requirement That Employees Speak English in Workplace as Discrimination in Employment Under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. §§ 2000e et seq.),” 90 A.L.R. Fed. 806. 20Cases related to employment denials based on an individual’s accent are collected in Timothy M. Hall, Annot., “When Does Adverse Employment Decision Based on Person’s Foreign Accent Constitute National Origin Discrimination in Violation of Title VII of Civil Rights Act of 1964?” 104 A.L.R. Fed. 816.

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With the advent of the Immigration Reform and Control Act, discrimination claims by individuals denied employment because the employer believes they may not be in the country lawfully have risen. (For discussion of this problem and a comparison of IRCA’s antidiscrimination provisions with those of Title VII, see L. S. Johnson, “The Antidiscrimination Provisions of the Immigration Reform and Control Act,” 62 Tulane L. Rev. 1059 (1988). See also Comment, “IRCA’s Antidiscrimination Provisions: Protections Against Hiring Discrimination in Private Employment,” 25 San Diego L. Rev. 405 (1988).)

5.3.3. Sex

5.3.3.1. Overview. Claims of sex discrimination may be brought under Title VII of the Civil Rights Act of 1964 (see Section 5.2.1 of this book), the Equal Pay Act (Section 5.2.2), the Constitution, the Executive Orders, or state civil rights laws.21 In addition to claims that an individual was subject to an adverse employment action because of his or her sex, claims of sexual harass- ment may be brought under Title VII because sexual harassment is a form of discrimination on the basis of sex. Discrimination on the basis of pregnancy is also a form of sex discrimination, and is specifically prohibited by Title VII. In addition, differential treatment by sex in retirement plans has been found to vio- late Title VII. And there has been considerable litigation by coaches of women’s sports alleging discrimination in salary and coaching assignments. Although Title VII does not outlaw discrimination on the basis of sexual orientation, sev- eral states have enacted laws prohibiting such discrimination (see Section 5.3.7).

Most sex discrimination claims against colleges have been brought by women faculty members. Illustrative cases are discussed in Section 6.4. However, sev- eral cases brought by nonfaculty employees illustrate significant principles in sex discrimination litigation.

Treating a similarly situated employee of one sex more favorably than a cor- responding employee of the opposite sex may violate Title VII or state nondis- crimination laws. For example, in Lawley v. Dept. of Higher Education, 36 P.3d 1239 (Colo. 2001), the state supreme court ruled that the university had termi- nated a female director of parking in order to retain two male subordinates. The court ordered the university to reinstate the plaintiff to her former position. On the other hand, another federal appellate court reversed a trial court judgment in favor of a research assistant. In Woodruff v. Ohman, 2002 U.S. App. LEXIS 2087 (6th Cir. 2002) (unpublished), the plaintiff had claimed that her supervi- sor had mistreated her on the basis of her sex. The trial court had awarded puni- tive damages and injunctive relief in the form of an apology from the former

5.3.3.1. Overview 411

21Cases and authorities are collected at Thomas Fusco, Annot., “What Constitutes Sex Discrimina- tion in Termination of Employee so as to Violate Title VII of Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2),” 115 A.L.R. Fed. 1; Wesley Kobylak, Annot., “Disparate Impact Test for Sex Discrimination in Employment Under Title VII of Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2),” 68 A.L.R. Fed. 19; Thomas Fusco, Annot., “What Constitutes Constructive Discharge of Employee Due to Sex Discrimination so as to Violate Title VII of Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2),” 116 A.L.R. Fed. 1.

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supervisor. The appellate court noted that the trial court had not made specific findings concerning whether the plaintiff had been treated less favorably than similarly situated male research assistants, and thus liability had not been established.

Stereotyping an individual because of his or her gender may provide evidence of sex discrimination, as in Price Waterhouse v. Hopkins, the U.S. Supreme Court case discussed in Section 5.2.1. But in Crone v. United Parcel Service, 301 F.3d 942 (8th Cir. 2002), a federal appellate court sided with the company that had refused to promote a female employee who was not “confrontational enough” for promotion to a job supervising truck drivers; the court affirmed the dismissal of the plaintiff’s sex discrimination claims. The court ruled that being “con- frontational” was a bona fide occupational qualification for the position; it was the plaintiff’s personality, not her gender, that disqualified her from the position.

5.3.3.2. Pregnancy and health benefits discrimination. The Pregnancy Dis- crimination Act of 1978 makes it a violation of Title VII for an employer to discriminate on the basis of pregnancy, childbirth, or related illnesses in employ- ment opportunities, health or disability insurance programs, or sick leave plans.22 Regulations issued by the Equal Employment Opportunity Commission pursuant to this law may be found at 29 C.F.R. § 1604.10 and Appendix, “Ques- tions and Answers on the Pregnancy Discrimination Act.” Pregnancy-related conditions must be treated the same as any other disabilities, and health insur- ance for pregnancy-related conditions must extend not only to female employ- ees but also to wives of male employees (Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669 (1983)). Health benefit plans must also provide the same level of prescription coverage to women as to men. A federal trial court ruled that Title VII prohibits employers from excluding contraceptives used by women from a prescription drug plan if more comprehensive coverage is pro- vided to men (Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001)).

Some states have enacted laws that attempt to “level the playing field” for women, who have the biological responsibility for bearing children, in order to ease their return to work. For example, a California law requires employers to give pregnant employees unpaid maternity leave and to reinstate them to the same or an equivalent position upon their return to work. That law was chal- lenged in California Federal Savings & Loan v. Guerra, 479 U.S. 272 (1987), in which the employer claimed that Title VII did not permit more favorable treat- ment of an individual because of pregnancy, but merely mandated that preg- nant women not be discriminated against. The Supreme Court ruled that the

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22Cases and authorities are collected at Paul A. Fischer, Annot., “Pregnancy Leave or Maternity Leave Policy, or Lack Thereof, as Unlawful Employment Practice Violative of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.),” 27 A.L.R. Fed. 537; Sheila A. Skojec, Annot., “Job Discrimination Against Unwed Mothers or Unwed Pregnant Women as Proscribed Under Pregnancy Discrimination Act (42 U.S.C.A. § 2000e(k)),” 91 A.L.R. Fed. 178; J. A. Bryant, Jr., Annot., “Termination of Employment Because of Pregnancy as Affecting Right to Unemployment Compensation,” 51 A.L.R.3d 254; Shauna Cully Wagner, Annot., “Discrimination Against Preg- nant Employee as Violation of State Fair Employment Laws,” 99 A.L.R.5th 1.

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Pregnancy Discrimination Act provided a “floor” of protection for pregnant employees, but not a ceiling, and that Title VII did not preempt state laws that recognized the special circumstances of pregnant employees.23

However, in a challenge to Missouri’s unemployment compensation law, which denies benefits to women who leave work because of the birth of a child, the Supreme Court ruled that Title VII does not prevent a state from categoriz- ing a resignation on account of the birth of a child as a voluntary resignation, resulting in ineligibility for unemployment benefits (Wimberly v. Labor & Indus- trial Relations Commission, 479 U.S. 511 (1987)). (For discussion of state unem- ployment compensation laws, see Section 4.6.7.)

Another issue related to pregnancy, or potential pregnancy, is the lawfulness of employer policies that exclude pregnant or potentially pregnant employees from work sites where exposure to substances could cause birth defects. Lab assistants, postdoctoral fellows, faculty, or students may work with fetotoxins. And some nonacademic employers have excluded from such jobs all women who were capable of becoming pregnant.24 They have done so in order to avoid liability for litigation by children seeking a remedy for birth defects allegedly traceable to their mothers’ workplace exposure to fetotoxins.

These “fetal vulnerability” policies were challenged in United Auto Workers v. Johnson Controls, 499 U.S. 187 (1991). The company, which manufactures auto- mobile batteries, argued that exposure to the lead used in the manufacturing process could cause birth defects, and that permitting women to work with the lead was unsafe. The company excluded all women capable of becoming pregnant—unless they could prove that they were unable to conceive a child— from the high-paying jobs involving lead exposure; but the company permitted men, even those who wished to father children, to work in these jobs.

A unanimous Supreme Court ruled that fetal vulnerability policies that excluded only women constituted intentional disparate treatment discrimina- tion, and rejected the company’s argument that, on the grounds of safety, inabil- ity to become pregnant was a bona fide occupational qualification for a position involving exposure to fetotoxins. The Court stated that the BFOQ is a narrow concept and is used only in “special situations” (499 U.S. at 201). The opinion clarifies the concept of BFOQ in the following manner:

Our case law . . . makes it clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job. This approach is consistent with the language of the BFOQ provision itself, for it suggests that permissible distinctions based on sex must relate to ability to perform the duties of the job [499 U.S. at 204].

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23The federal Family and Medical Leave Act of 1993 (Pub. L. No. 103-3) requires employers with fifty or more employees to grant up to twelve weeks of unpaid leave each year to an employee for the care of a sick, newborn, or recently adopted child, or a seriously ill family member, or for the employee’s own serious health condition. This law is discussed in Section 4.6.4. 24Cases regarding fetal vulnerability policies are collected in Wesley Kobylak, Annot., “Exclusion of Women from Employment Involving Risk of Fetal Injury as Violative of Title VII of Civil Rights Act of 1964 (42 U.S.C.S. §§ 2000e et seq.),” 66 A.L.R. Fed. 968.

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Given the language of Johnson Controls, it is unlikely that a college or univer- sity could successfully specify gender as a BFOQ for jobs involving exposure to fetotoxins, or for virtually any other job either.

5.3.3.3. Sexual harassment. Much attention has been given to the issue of sexual harassment in recent years. The number of sexual harassment claims by students, staff, and faculty is growing, as individuals become aware that such conduct is prohibited by law, whether the target is an employee or a student. Sexual harassment of staff and faculty is addressed in this Section; harassment of students is discussed in Sections 8.1.5 and 9.3.4.

Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964 (discussed in Section 5.2.1) because it is workplace conduct experienced by an individual on the basis of his or her sex. It is also a violation of Title IX of the Education Amendments of 1972 (discussed in Section 5.2.3), although it may be difficult for an employee to state a sexual harassment claim under Title IX rather than under Title VII. Sexual harassment victims may be male or female, and harassers may be of either gender as well. Furthermore, same-sex sexual harassment is also a violation of Title VII and Title IX.

The EEOC’s guidelines prohibiting sexual harassment expansively define sex- ual harassment and establish standards under which an employer can be liable for harassment occasioned by its own acts as well as the acts of its agents and supervisory employees. The guidelines define sexual harassment as:

(a) . . . Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment . . . [29 C.F.R. § 1604.11].

Whether or not the alleged harasser is an employee, if the target of the harass- ment is an employee, the employer may be liable for the unlawful behavior. Because the EEOC guidelines focus on both speech and conduct, the question of the interplay between sexual harassment and academic freedom arises, particu- larly in the classroom context. This interplay is discussed in Sections 7.2.2 and 9.3.4.

Two forms of sexual harassment have been considered by the courts, and each has a different consequence with regard to employer liability and poten- tial remedies. Harassment that involves the exchange of sexual favors for employment benefits, or the threat of negative action if sexual favors are not granted, is known as “quid pro quo harassment.” The U.S. Supreme Court addressed this form of sexual harassment for the first time in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), ruling that, if quid pro quo harassment were proven, employer liability under Title VII would ensue even if the victim had not reported the harassment. Using principles of agency law, the Court asserted

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that harassment involving an actual or threatened change in terms and condi- tions of employment would result in a form of strict liability for the employer.25

The Court did not elaborate on the showing that the plaintiff must make to demonstrate that the employer “knew or should have known,” but it did men- tion two tests to assist courts in determining whether a plaintiff’s decision not to report alleged sexual harassment was reasonable:

1) the employer should have a clearly-worded policy prohibiting sexual harass- ment in the workplace that is communicated to all employees;

2) the employer should have a system for reporting sexual harassment that pro- vides an alternate channel so that the victim, if harassed by a supervisor, can avoid the traditional complaint procedure of discussing the problem with that supervisor [477 U.S. at 71–73].

The other form of harassment, the creation of a hostile or offensive environ- ment, may involve virtually anyone that the target employee encounters because of the employment relationship. Supervisors, coworkers, clients, customers, and vendors have been accused of sexual harassment. (For an example of potential university liability for harassment of an employee by a homeless individual who frequented the law school library, see Martin v. Howard University, 1999 U.S. Dist. LEXIS 19516 (D.D.C. 1999).) If the allegations are proven, and if the employer cannot demonstrate that it responded appropriately when it learned of the harassment, the employer may be found to have violated Title VII or state law.

The U.S. Supreme Court has decided several cases involving hostile envi- ronment sexual harassment, beginning with Harris v. Forklift Systems, 510 U.S. 17 (1993). In Harris, the plaintiff had demonstrated that her supervisor had repeatedly engaged in verbal sexual harassment. The major issue in the case was not whether the behavior was harassment (the defense had conceded that it was), but whether the plaintiff must demonstrate serious psychological harm in order to convince a court that the harassment was sufficiently severe and per- vasive to constitute a “hostile or offensive environment.” In a unanimous opin- ion, the U.S. Supreme Court rejected the argument that serious harm must be demonstrated. The Court determined that the harassing conduct itself is unlaw- ful, and whether it has a psychological, or even a financial, impact on the plaintiff is irrelevant.

Although the standard for quid pro quo harassment is clear in that the accused harasser must have the power to affect the target’s terms and condi- tions of employment, the standard for establishing hostile or offensive envi- ronment is less clear, and is particularly fact sensitive. Name calling, sexual jokes, sexual touching, sexually explicit cartoons, and other sexual behavior by

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25Cases and authorities are collected at Ethel R. Alston, Annot., “Sexual Advances by Employee’s Superior as Sex Discrimination Within Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.),” 46 A.L.R. Fed. 224; Linda A. Sharp, Annot., “Workers’ Compensation as Precluding Employee’s Suit Against Employer for Sexual Harassment in the Workplace,” 51 A.L.R.5th 163.

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supervisors or coworkers have been found to constitute sexual harassment (see, for example, Alston v. North Carolina A&T State University, 304 F. Supp. 2d 774 (M.D.N.C. 2004)). Furthermore, vandalism or harassing conduct of a nonsex- ual nature directed at a target because of his or her gender has also been found to violate Title VII, sometimes as sexual harassment and sometimes as sex dis- crimination (see, for example, Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir. 1988)).

Words alone may be sufficient to constitute sexual harassment. In a case involving a female faculty member, Jew v. University of Iowa, 749 F. Supp. 946 (S.D. Iowa 1990), false rumors that the plaintiff had engaged in a sexual rela- tionship with her department chair in order to obtain favorable treatment were found to constitute actionable sexual harassment, and the institution was ordered to promote the plaintiff and to give her back pay and attorney’s fees. But a single remark, even if “crude,” will probably not be sufficient to establish a claim of sexual harassment, according to the U.S. Supreme Court (Clark County School District v. Breeden, 532 U.S. 268 (2001)).

The U.S. Court of Appeals for the Ninth Circuit, in Jordan v. Clark, 847 F.2d 1368 (9th Cir. 1988), described the showing that the plaintiff must make in order to demonstrate a hostile environment. The plaintiff must prove:

1) that he or she was subjected to demands for sexual favors, or other verbal or physical conduct of a sexual nature;

2) that this conduct was unwelcome;

3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment [847 F.2d at 1373].

But the definition of an “abusive working environment” has not been uniformly interpreted. Establishing whether the conduct is sufficiently severe or pervasive, and whether the plaintiff’s claim that the behavior was offensive meets the stan- dard for liability, has been a problem for the courts.

The U.S. Court of Appeals for the Ninth Circuit created a special standard by which to determine whether the complained-of conduct constituted a hostile environment. In Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), the court created the “reasonable woman” standard, in which the court assumes the perspective of a reasonable person of the plaintiff’s gender, since “conduct that many men consider unobjectionable may offend many women” (924 F.2d at 878).

EEOC guidelines use the “reasonable person” standard (Policy Guidance on Sexual Harassment, available at http://www.eeoc.gov), but several state courts have decided that the “reasonable woman” standard is appropriate (see, for example, Lehman v. Toys ‘R’ Us, 626 A.2d 445 (N.J. 1993)). While the U.S. Supreme Court did not discuss the question of standards in Harris, Justice O’Connor appeared to use the “reasonable person” rather than the “reasonable woman” standard. (For a brief discussion of interpretation problems related to the “reasonable woman” standard, see E. H. Marcus, “Sexual Harassment Claims: Who Is a Reasonable Woman?” 44 Labor L.J. 646 (1993).)

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As sexual harassment jurisprudence developed in the federal courts, there was disagreement as to whether an employer could escape liability for harass- ment if it were unaware of the harassment or if no negative employment action had been taken. In 1998, the U.S. Supreme Court issued opinions in two cases that crafted guidelines for employer responses to harassment complaints, and also created an affirmative defense for employers who had acted in good faith. In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and in Burlington Indus- tries v. Ellerth, 524 U.S. 742 (1998), the Court addressed the issue of an employer’s liability for a supervisor’s verbal sexual harassment when no nega- tive employment action had been taken against the target of the harassment. In both cases, supervisors had made numerous offensive remarks based on the tar- gets’ gender and had threatened to deny them job benefits. Neither of the plain- tiffs had filed an internal complaint with the employer; both had resigned and filed a sexual harassment claim under Title VII. The employers in both cases had argued that, because no negative employment actions were taken against the plaintiffs, and because the plaintiffs had not notified the employer of the alleged misconduct, the employers should not be liable under Title VII.

The Supreme Court rejected this argument, ruling that an employer can be vicariously liable for actionable discrimination caused by a supervisor. The employer, however, may assert an affirmative defense that examines the rea- sonableness of the employer’s and the target’s conduct. If the employer had not circulated a policy against sexual harassment, had not trained its employees con- cerning harassment, and had not communicated to employees how to file a harassment complaint, then the target’s failure to use an internal complaint process might be completely reasonable, according to the Court. But if the employer had been proactive in preventing and responding to sexual harassment, then a plaintiff’s failure to use an internal complaint process might not be reasonable.

The Court explained that the employer can establish an affirmative defense to a sexual harassment claim if it can demonstrate:

(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise [524 U.S. at 807].

The Court’s rulings in Ellerth and Faragher blur the previous distinction between liability for quid pro quo harassment and liability for hostile environ- ment harassment. But the cases also recognize an important defense for those “good employers” who have developed clear policies, advised employees of the complaint process, and conducted training about avoiding harassment. The approach taken by the Court has subsequently been applied to litigation concerning harassment on the basis of race (Wright-Simmons v. The City of Oklahoma City, 155 F.3d 1264 (10th Cir. 1998)).

An example of a college’s successful use of the affirmative defense is Gawley v. Indiana University, 276 F.3d 301 (7th Cir. 2001). A female police officer alleged

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that she had endured verbal and physical sexual harassment by a supervisor for a period of seven months. At that point, the plaintiff filed a formal complaint under the university’s harassment complaint process. The university investi- gated promptly, issued a report finding that harassment had occurred, and the harassment stopped as soon as the report was issued. The court ruled that the plaintiff’s delay in reporting the harassment was unreasonable, and that, given the university’s response when it learned of the harassment, filing a com- plaint promptly would have ended the harassment at a much earlier point in time. The appellate court affirmed the trial court’s award of summary judgment to the university.

In order to take advantage of the Faragher/Ellerth affirmative defense, the employer must demonstrate that its policy effectively communicates to super- visors how they should handle harassment complaints and provides an effec- tive mechanism for bypassing the supervisor should that individual be the alleged harasser. In Wilson v. Tulsa Junior College, 164 F.3d 534 (10th Cir. 1998), the Court ruled that the college had not established an affirmative defense because its complaint procedure was inadequate and it did not take timely and effective remedial action. The court criticized the college’s harassment policy because it did not discuss the responsibilities of a supervisor who learned of alleged harassment through informal means. Furthermore, said the court, the unavailability of individuals to receive harassment complaints during the evening or on weekends, when the college was open and students and employees were present, was additional evidence of an ineffective harassment policy.

The U.S. Supreme Court addressed the question of whether a plaintiff who quit as a result of exposure to a sexually hostile work environment could estab- lish a “constructive discharge” theory, and if so, whether the employer then lost the benefit of the Faragher/Ellerth affirmative defense. In Pennsylvania State Police v. Nancy Drew Suders, 542 U.S. 129 (2004), the Court, in an 8-to-1 ruling, determined that the plaintiff could establish constructive discharge by showing that the abusive work environment “became so intolerable that her resignation qualified as a fitting response.” The Court stated that the employer would not be able to use the affirmative defense if a supervisor’s “official act” (such as demotion or discipline) precipitated the constructive discharge, but that absent such a “tangible employment action,” the affirmative defense would be avail- able to employers if the employee resigned and then established a constructive discharge.

Consensual relationships that turn sour may result in sexual harassment claims and liability for the college. For example, in Green v. Administrators of the Tulane Education Fund, 284 F.3d 642 (5th Cir. 2002), a former office man- ager for a department chair alleged that the chair harassed her because their sexual relationship had ended and because the chair’s new love interest insisted that the plaintiff be fired. Although the university provided evidence that it had attempted to transfer the plaintiff to another position and had attempted to ensure that the chair did not retaliate against her, a jury reached a verdict for

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the plaintiff and awarded her $300,000 in compensatory damages, in addition to back pay and front pay awards, and more than $300,000 in attorney’s fees. The trial court had not allowed the jury to address the plaintiff’s claim for punitive damages.

Although the appellate court upheld the jury award, it agreed with the uni- versity’s argument that the standard for awarding punitive damages had not been met. Analyzing the facts under the standard established by the U.S. Supreme Court in Kolstad v. American Dental Association, 527 U.S. 526 (1999), the appellate court held that because the university had attempted in good faith to respond to the plaintiff’s complaints about the chair’s behavior, its behav- ior did not meet the “malice” or “reckless indifference” showing required by Kolstad.

Although most federal courts have ruled that liability for sexual harassment under Title VII is corporate rather than individual, some state laws provide for individual liability of supervisors for harassment (see, for example, Matthews v. Superior Court, 40 Cal. Rptr. 2d 350 (Cal. App. 2 Dist. 1995)). (For a discussion of individual liability under Title VII, see Scott J. Connolly, Note, “Individual Liability of Supervisors for Sexual Harassment Under Title VII: Courts’ Reliance on the Rules of Statutory Construction,” 42 B.C. L. Rev. 421 (2001).)

Although Title VII does not forbid harassment on the basis of sexual orien- tation, it does permit claims of same-sex sexual harassment if the target can demonstrate that the harassment was based on the sex of the target. The U.S. Supreme Court addressed this issue for the first time in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1997). The Court ruled that a claim of male-to- male harassment was cognizable under Title VII if the plaintiff could demon- strate that the offensive conduct occurred “because of” his gender. In a unanimous opinion, the Court, through Justice Scalia, stated that “[Title VII] does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. [The law] forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment” (523 U.S. at 81).

Same-sex sexual harassment claims have increased substantially since the Court’s ruling in Oncale (see Reed Abelson, “Men, Increasingly, Are the Ones Claiming Sex Harassment by Men,” New York Times, June 10, 2001, p. 1). Courts have allowed plaintiffs to state claims of same-sex sexual harassment if the alleged harasser is homosexual. For example, in Mota v. University of Texas Houston Health Science Center, 261 F.3d 512 (5th Cir. 2001), the appellate court affirmed an award of back pay, front pay, and compensatory damages and attor- ney’s fees to a male professor harassed and retaliated against by a male supe- rior whose sexual advances he had rejected. The trial judge had given the plaintiff a substantial award of front pay because, after the jury returned a ver- dict of retaliation against the plaintiff by the university, the university president sent an e-mail message to eight thousand university employees stating that the plaintiff had not been terminated but had failed to return from a leave of absence. Because of those comments, the trial judge added five years of front

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pay to the plaintiff’s original front pay award, reasoning that such negative remarks would make it difficult for the plaintiff to find another position.

In other cases, plaintiffs who can demonstrate that they are harassed because of hatred or hostility toward them because of their gender may be allowed to state same-sex harassment claims. For example, a male employee who was ver- bally harassed by male coworkers because he was viewed as effeminate pre- vailed in his claim of sexual harassment in Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864 (9th Cir. 2001). The court sided with the plaintiff’s argument that the Supreme Court’s theory developed in Price Waterhouse v. Hopkins (discussed in Section 5.2.1) should apply in this case, stating that the verbal abuse that the plaintiff endured was “closely linked to gender.”

(For a discussion and analysis of same-sex sexual harassment claims in both academic and nonacademic settings, see Mary Ann Connell, “Evolving Law in Same-Sex Harassment and Sexual Orientation Discrimination,” 23rd Annual National Conference on Law and Higher Education, Stetson University College of Law, 2002. See also Nailah A. Jaffree, Note, “Halfway Out of the Closet: Oncale’s Limitations in Protecting Homosexual Victims of Sex Discrimination,” 54 Fla. L. Rev. 799 (2002).)

Subsection (f) of the EEOC guidelines emphasizes the advisability of imple- menting clear internal guidelines and sensitive grievance procedures for resolv- ing sexual harassment complaints. The EEOC guidelines’ emphasis on prevention suggests that the use of such internal processes may alleviate the postsecondary institution’s liability under subsections (d) and (e) and diminish the likelihood of occurrences occasioning liability under subsections (c) and (g). Title IX requires grievance procedures.

In light of the social and legal developments, postsecondary institutions should give serious attention and sensitive treatment to sexual harassment issues. Sexual harassment on campus may be not only an employment issue but, for affected faculty and students, an academic freedom issue as well. Advance preventive planning is the key to successful management of these issues, as the EEOC guidelines indicate. Institutions should involve the aca- demic community in developing specific written policies and information on what the community will consider to be sexual harassment.

5.3.3.4. Application to athletics coaches. Although there have been several federal appellate rulings on the application of Title IX of the Education Amend- ments of 1972 to participants in collegiate athletics activities (see Section 10.4.3), less attention has been paid to alleged discrimination against women coaches, or against coaches of either gender who coach women’s teams. A survey of gen- der equity data collected under the Equity in Athletics Disclosure Act of 1994 (Pub. L. 103-382, 108 Stat. 3969, codified at 20 U.S.C. § 1092 (2002)) revealed that the average salary of women coaches was roughly two-thirds of the average salary of male coaches, and that pay disparities exist in all divisions (see Jennifer Jacobson, “Female Coaches Lag in Pay and Opportunities to Oversee Men’s Teams,” Chron. Higher Educ., June 8, 2001, A38). Discrimination claims may be brought by coaches under Title VII of the Civil Rights Act of 1964 (see Section 5.2.1 of this book), the Equal Pay Act (Section 5.2.2), and Title IX (5.2.3).

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Although the requirements of an Equal Pay Act claim differ somewhat from those of a Title VII or Title IX claim (in that a four-part test is required under the Equal Pay Act in order for a plaintiff to make a prima facie case of salary discrimina- tion based on sex), in practice the courts have used the Equal Pay Act standards to evaluate these claims under all three statutes. In a few cases, male coaches have been the plaintiffs.

In 1997, the Equal Employment Opportunity Commission issued an “Enforcement Guidance on Sex Discrimination in the Compensation of Sports Coaches in Educational Institutions” (available at http://www.eeoc.gov/ docs/coaches/). Cases decided prior to the issuance of the Guidance tended to reject the salary discrimination claims of women coaches. For example, plain- tiffs who argued that the gender of the team members, rather than the gender of the coach, was responsible for the lower salary were not able to satisfy the prima facie case requirements of Title VII or the Equal Pay Act because team members are not employees (Deli v. University of Minnesota, 863 F. Supp. 958 (D. Min. 1994)). And plaintiffs who could not link institutional decisions regard- ing the status and value of women’s sports to gender discrimination also did not prevail (Bartges v. University of North Carolina at Charlotte, 908 F. Supp. 1312 (W.D.N.C. 1995), affirmed without opinion, 94 F.3d 641 (4th Cir. 1996)).

The EEOC Guidance discusses the standards for evaluating claims of coaches alleging salary discrimination under the Equal Pay Act and Title VII. For Equal Pay Act claims, the Guidance states that plaintiffs must identify one or more comparators; “a plaintiff must show that a specific employee of the opposite sex earned higher wages for a substantially equal job,” rather than using a hypo- thetical employee or the composite features of jobs of several employees. The Guidance notes that plaintiffs must demonstrate that they have equal skills, exert equal effort, have equal responsibility, and share the same working con- ditions as the individual with whom they wish to be compared. Therefore, if a plaintiff cannot prove that her skills or experience are equivalent to those of the comparator, she will not be able to make out a prima facie case.

With respect to employer defenses to Equal Pay Act claims, the most likely defense is that the salary differential was based on “any factor other than sex” (29 U.S.C. § 206(d)(1)). The Guidance states that, under the defense, the fol- lowing justifications for differential pay are acceptable, if proven: additional responsibilities (for example, the size of the team, the number of assistants, the demands of event and media management, scheduling, and budgetary respon- sibilities); superior experience, ability, or skills as long as they are closely related to the coaching position; and “marketplace value of the particular individual’s job-related characteristics.” The Guidance rejects the following justifications for differential pay: that the salary is the “going rate” for a particular sport, the gen- der of the team members, and prior salary without examination of whether it was linked to prior discrimination. With respect to the argument that sports pro- ducing more revenue justify higher salaries for their coaches, the Guidance reserves judgment. Although recognizing that differentials in revenue might be a legitimate “factor other than sex,” the Guidance states that “the Commission is also aware of the studies showing that women’s athletic programs historically

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and currently receive considerably less resources than men’s programs,” and notes that the Commission will examine whether an institution has discrimi- natorily provided reduced support to a female coach to produce revenue for her team. (For a case in which the court rejected the Equal Pay Act claim of a male assistant coach on the grounds that his female counterpart had more numerous and significant responsibilities, see Horn v. University of Minnesota, 362 F.3d 1042 (8th Cir. 2004).)

The analysis for Title VII claims under the Guidance is similar to that for Equal Pay Act claims, insofar as the plaintiff asserts that the coaching positions are substantially equal. The Guidance notes that the sports need not be the same or similar; it is the functional duties of the coaches that are compared, not the nature of the sports. While an employment practice that violated Title VII would not necessarily violate the Equal Pay Act, a violation of the Equal Pay Act would also violate Title VII.

An illustrative case litigated under the Equal Pay Act, Title VII, and Title IX is Weaver v. Ohio State University, 71 F. Supp. 2d 789 (S.D. Ohio 1998), affirmed 194 F.3d 1315 (6th Cir. 1999). Weaver, the women’s field hockey coach, brought claims of discriminatory termination, salary discrimination, and retaliation against the university. For her salary discrimination claims, she compared her- self to the male ice hockey coach. The court rejected her claims, noting that there were sufficient differences between the responsibilities, skill, and effort required of the coaches. The ice hockey season was longer, and more games were played. Furthermore, there were more players to coach on the ice hockey team. The court also ruled that the male coach had additional responsibilities with respect to public relations and marketing, and that prevailing market rates for ice hockey coaches were higher than for field hockey coaches. The appel- late court affirmed these rulings and declined the trial court’s invitation to rule on whether Weaver’s Title IX claim was preempted by Title VII.

Jan Lowery, the former women’s basketball coach and women’s athletics coor- dinator at Tarleton State University, asserted claims of salary discrimination under Title VII, the federal equal protection clause, and Title IX, as well as Title IX and First Amendment retaliation claims (for her opposition to allegedly discrimina- tory practices related to women’s athletics at the university). Although Lowery resigned from Tarleton, she claimed constructive discharge, demotion, and failure to promote her to the position of overall athletic director.

In Lowery v. Texas A&M University System, 117 F.3d 242 (5th Cir. 1997), the court dismissed Lowery’s Title IX salary discrimination claim, stating that there was no private right of action under Title IX for employment discrimination, but allowed her retaliation claims and other salary discrimination claims to proceed. The university then sought summary judgment on the remaining claims. The trial court denied the university’s motion for summary judgment on these claims (11 F. Supp. 2d 895 (S.D. Tex. 1998)).

With respect to the Equal Pay Act claim, the university had conceded that Lowery and the male coach-athletic coordinator with whom she compared her- self had comparable duties and responsibilities. The court ruled that Lowery had raised issues of fact that could not be resolved at the summary judgment

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stage about how the two individuals were paid, whether salary increases they received were for additional responsibilities or their current responsibilities, and other apparent inconsistencies in the way the two employees were treated. With respect to Lowery’s Title VII claim, the court ruled that a demotion is an adverse employment action, and thus Lowery had established a prima facie case of retal- iation under Title VII. With respect to the retaliation claims, the court held that Lowery could make out a prima facie case of retaliation under Title IX because the evidence showed that the university had reprimanded her for discussing her concerns about alleged Title IX violations with individuals outside the athletic department, and demoted her from the position of women’s athletics coordi- nator shortly thereafter. Regarding Lowery’s First Amendment retaliation claim, the court ruled that her stated concerns about potential Title IX violations were matters of public concern and thus were protected by the First Amendment’s free speech clause (see Section 7.1.1).

But another women’s basketball coach was less successful in her discrimi- nation claims against the University of Southern California (USC). Marianne Stanley was hired by USC in 1989 and given a four-year contract at a salary sub- stantially below that of the coach of the men’s basketball team, George Ravel- ing. The women’s basketball team was very successful during Stanley’s term as coach, and when it came time to negotiate a renewal of her contract, Stanley asked that she be paid a salary equivalent to Raveling’s. The athletic director refused to pay her at that level, but offered her a new contract at a higher salary. Stanley held out for an equivalent salary, but the parties could not agree, and when Stanley’s initial contract expired, it was not renewed. Stanley filed claims under the Equal Pay Act and Title IX, as well as state claims, including several under the California Fair Employment and Housing Act and the California constitution.

In 1995, the trial court awarded summary judgment to the university, and Stanley appealed. Four years later, the appellate court affirmed in Stanley v. Uni- versity of Southern California, 178 F.3d 1069 (9th Cir. 1999). The university argued that the jobs held by Stanley and Raveling were different (primarily because the men’s coach bears greater revenue-generating responsibilities and is under greater pressure from the media and fans to have a winning season, and because Raveling did generate more revenue than did Stanley), while Stanley argued that differences between the two jobs were primarily attributable to the university’s prior gender-based decisions about resource allocation to men’s and women’s sports. The court assumed without ruling that the jobs were substan- tially equal for Equal Pay Act purposes, and then found that Raveling had qual- ifications superior to Stanley’s. The court cited the following differences in their qualifications at the time each was hired: Raveling had thirty-one years of coaching experience (compared with Stanley’s seventeen); Raveling had coached the men’s Olympic basketball team, and had twice been named national coach of the year (Stanley had done neither); Raveling had nine years of marketing and promotional experience (Stanley had none); and Raveling had written several books on basketball, which Stanley had not. The court noted that the EEOC Guidance specifically permitted superior experience to justify pay

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differentials, and ruled that the university had successfully demonstrated that the salary differential was a result of a factor “other than sex.” The court rejected Stanley’s other discrimination claims on the same basis. Furthermore, the court ruled that the university had not retaliated against Stanley by refus- ing to enter a new contract, and that she was not constructively discharged sim- ply because the parties could not agree on the terms of a new contract.

Claims of discrimination by athletics coaches are very fact sensitive, as the following case illustrates. The case also illustrates the effect of allowing a case to go to a jury, which most of the cases involving alleged discrimination against women coaches do not. A federal jury awarded the women’s basketball coach and women’s sports administrator at Brooklyn College, City University of New York (CUNY), $85,000 in compensatory damages plus back pay of $274,920 in her Equal Pay Act and Title VII claims. In Perdue v. City University of New York, 13 F. Supp. 2d 326 (E.D.N.Y. 1998), Molly Perdue established that she per- formed jobs that were substantially equal to the men’s basketball coach and the men’s sports administrator. She was paid less than half of the average salaries of the two male comparators, but asserted that she had the same responsibili- ties as each of these individuals. Furthermore, she had a smaller office, a smaller budget, fewer assistant coaches, and no locker room for her team; she also cleaned the gym and washed the players’ uniforms, which the male coach did not. The court ruled that there was enough evidence for the jury to find that Perdue’s job responsibilities, skill, and effort were comparable to each of the male comparators, despite the fact that each of the male comparators had more experience in these roles than did Perdue.

The laws prohibiting sex discrimination in employment protect male coaches as well as female coaches. The EEOC ruled in 1998, for instance, that the Uni- versity of Pennsylvania had discriminated against the assistant coach of its men’s rowing team by not permitting him to apply for the vacant position of head coach of the women’s crew team (Medcalf and University of Pennsylva- nia, Charge No. 170980294, decided December 9, 1998). A federal trial court rejected the University’s motion for summary judgment (Medcalf v. Trustees of the University of Pennsylvania, 2001 U.S. Dist. LEXIS 10155 (E.D. Pa. June 19, 2001)), and a federal jury found for the plaintiff, awarding him compensatory and punitive damages and lost wages. The university appealed, and a federal appellate court affirmed the jury’s verdict (71 Fed. Appx. 924 (3d Cir. 2003)) (unpublished).

This area of the law is still developing, and it remains to be seen whether courts will follow the EEOC Enforcement Guidance’s framework for analyzing claims of salary discrimination or will defer to the “business judgment” of the institution with respect to how it allocates resources for athletic programs. Coaches who believe that their pay is lower than that of similar coaches because of their gender (rather than the gender of the team members) may find some success under Title IX (at least for retaliation claims), the Equal Pay Act (if they can find a suitable comparator), or under Title VII. In fact, the EEOC’s state- ment that the sports do not have to be the same suggests that coaches of women’s teams, such as basketball or softball, might wish to compare

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themselves with coaches of different sports with similar-sized teams, responsi- bilities, and experience. The issue of whether revenue production is a neutral factor “other than sex” will have to be resolved on a case-by-case basis.

These cases suggest a strategy for avoiding litigation on, or defending against, claims of sex discrimination in coaches’ salaries. First, the institution may find it useful to conduct an audit of coaches’ salaries and to adjust the salaries of those coaches whose functions are similar to those of higher-paid coaches with similar experience, seniority, and coaching success. Written position descrip- tions for coaches should specify the duties, skills, and responsibilities necessary for satisfactory performance. New coaches should be recruited from a diverse pool that includes other-gender applicants and minorities. Drafting contracts that specify the duties of the coach, whether there will be bonuses and under what circumstances, and what other responsibilities are expected of each coach may also help an institution avoid liability. And the institution will need to clar- ify the basis for any negative employment action to defend against retaliation claims by coaches, which in some cases have been more successful than their underlying discrimination claims.

(For an analysis of how discrimination law is applied to pay disparities among coaches, see John Gaal, Michael S. Glazier, & Thomas S. Evans, “Gender-Based Pay Disparities in Intercollegiate Coaching: The Legal Issues,” 28 J. Coll. & Univ. Law 519 (2002). For practical advice on this subject, see Janet Judge, David O’Brien, & Timothy O’Brien, “Pay Equity: A Legal and Practical Approach to the Compensation of College Coaches,” 6 Seton Hall J. Sports L. 549 (1996).)

5.3.4. Disability. Colleges have not escaped the flood of disability discrim- ination cases that resulted from the enactment of the Americans With Disabili- ties Act (ADA) of 1990. Like their counterparts in nonacademic organizations, college employees have usually been unsuccessful in establishing claims under this law.26 Depending on the protections offered by state law, plaintiffs’ coun- sel may prefer to bring these claims under state nondiscrimination law because of the narrowness of the ADA’s definition of disability and the complications of establishing under the ADA that the plaintiff is “qualified.”27

Employer defenses to ADA claims typically focus on the effect of the disor- der on the employee’s work performance, attendance, behavior, or some other relevant concern. In some cases, however, the employer’s defense is that the disability was irrelevant to the negative employment action.

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26A study of ADA employment cases litigated between the law’s enactment and June 2000 con- cluded that plaintiffs succeeded on the merits only 4 percent of the time (Barbara A. Lee, “A Decade of the Americans With Disabilities Act: Judicial Outcomes and Unresolved Problems,” 42 Industrial Relations 11 (2003)). 27For example, both California’s and New Jersey’s nondiscrimination laws have a more expansive definition of “disability” than the ADA, which greatly improves plaintiffs’ ability to get their cases to a jury (California Fair Employment and Housing Act, Cal. Gov’t. Code § 12940; New Jersey Law Against Discrimination, N.J.S.A. 10:5–5(q)).

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IS THE EMPLOYEE DISABLED FOR ADA PURPOSES? As discussed in Section 5.2.5, an employee seeking a remedy for alleged disability discrimination must first demonstrate that he or she meets the Act’s definition of disability. This has been a substantial hurdle for many plaintiffs. The law requires the plaintiff to demon- strate that the disorder “substantially limits” one or more “major life functions.” The U.S. Supreme Court has determined that the effect of the disorder on the plaintiff must be evaluated taking into consideration any “mitigating measures,” such as medication or physical aids (such as a prosthetic device). And if the dis- order limits the plaintiff’s ability to perform a particular job, but not a class of jobs, the courts have ruled that the individual is not “disabled” under the Act’s definition (see discussion in Section 5.2.5).

The opinion in Palotai v. University of Maryland at College Park, 2002 U.S. App. LEXIS 12757 (4th Cir. 2002) (unpublished), provides an example of the application of ADA principles to a discrimination claim. The plaintiff, Thomas Palotai, was hired as a greenhouse technician. Because the greenhouse plants were used for research and teaching, Palotai was required to adhere to a speci- fied schedule of care for the plants. On several occasions, Palotai was unable to complete his tasks within the time framework required by his supervisor. Seven months after he was hired, he informed his supervisor that he had a learning disability that made it impossible for him to meet the time frames. Several meet- ings were held with his supervisor to discuss his performance problems; he was disciplined after each meeting. In addition, Palotai disregarded safety rules, such as failing to wear protective glasses while spraying the plants with pesticides and wearing shorts in an area where the safety rules required that long pants be worn.

After several written warnings, the university suspended Palotai, who then requested sick leave because of an eye injury related to his pesticide spraying responsibilities. After returning from sick leave, his performance problems per- sisted, and he was terminated. Palotai filed a Fourteenth Amendment due process claim and an ADA claim. He claimed three “disabilities” under the ADA: a learning disorder, obsessive-compulsive disorder, and the eye injury sustained while working for the university. Noting that Palotai held a B.S. in biology and had completed thirty hours of graduate work, the court rejected the claim that Palotai’s learning disability interfered with a major life function (learning). The court refused to characterize Palotai’s obsessive-compulsive disorder as an ADA- protected disability because there was no evidence that it limited his ability to work. And because the visual impairment was quite moderate, the court con- cluded as well that Palotai was not disabled in this respect. The court concluded by ruling that, even assuming that Palotai’s disorders met the ADA’s definition of disability, the university’s insistence that he perform his tasks within a spe- cific time frame was reasonable, and an accommodation that disregarded those time frames would have been an undue hardship.

Similarly, a nurse with multiple sclerosis was found not to be disabled for ADA purposes in Sorensen v. University of Utah Hospital, 194 F.3d 1084 (10th Cir. 1999). Although her physician had cleared her to return to work after a five- day hospitalization related to her disorder, the physician in charge of the burn

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unit, where the plaintiff had worked, refused to allow her to return to work because he was concerned that she would encounter further problems related to her disorder. She was, however, allowed to work in the emergency room and in the surgical intensive care unit. Because of the hospital’s continuing refusal to allow the plaintiff to return to the burn unit, she resigned and filed a claim of constructive discharge and disability discrimination. The court ruled that she was not disabled (she could perform all functions without accommodation), that she was not regarded as disabled, nor was she discriminated against because of a record of a disability, basing its ruling on the fact that the position in the burn unit was the only position from which the plaintiff had been excluded. Citing Sutton (Section 5.2.5), the court ruled that the inability to per- form one job does not meet the ADA’s definition of substantial limitation, and that the plaintiff was not excluded from a wide class of jobs. Similar reasoning led to a similar outcome for the parties in Broussard v. University of California, 192 F.3d 1252 (9th Cir. 1999), in which an animal care technician with carpal tunnel syndrome was found not be disabled under the ADA because her par- ticular job was the only job she could not perform as a result of her disability.

Employees with mental disorders are also potentially protected by the ADA if the employee can meet the Act’s definition of disability. But a mental disor- der that is linked to a particular job or supervisor will probably not qualify as a disability for ADA purposes. For example, in Schneiker v. Fortis Insurance Co., 200 F.3d 1055 (7th Cir. 2000), an employee diagnosed with major depression was unsuccessful in her discrimination claim because her work performance had been acceptable until she began working for a new supervisor. The court characterized her difficulties as a personality conflict rather than a disability.

IS THE EMPLOYEE QUALIFIED? If the plaintiff can convince the court that he or she has a disability that meets the ADA’s narrow definition, the plaintiff’s next task is to demonstrate that he or she is qualified for the position held or desired. The Act requires that the individual demonstrate that he or she can perform the “essential functions” of the position in question.

Hatchett v. Philander Smith College, 251 F.3d 670 (8th Cir. 2001) provides an analysis of whether an employee is qualified. Hatchett was the business man- ager for the college. When the position was upgraded to a dean of administra- tive services, Hatchett applied for, but was not offered, the position, and continued working as the business manager.

Approximately eight months after applying for the deanship, Hatchett was injured by falling debris while on college business. Although being treated by a neurologist and a psychologist for her injuries, Hatchett continued working, but could not perform all of the functions of the business manager. She then took medical leave, and the college eliminated the business manager position while she was on leave. A male employee whom Hatchett had trained, and who had performed the business manager responsibilities while she was on leave, was promoted to the deanship. The college president offered Hatchett three part- time positions, which she declined.

The court reviewed the recommendations of Hatchett’s physician that she avoid conflict, only deal with individuals one on one, and not confer with

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students or attend meetings. The written job description for the deanship, in addition to Hatchett’s own testimony, included these duties. The court deter- mined that these duties, which Hatchett’s physician stated that she could not perform, were essential functions of the position, and denied Hatchett’s ADA claim.

Menes v. C.U.N.Y., 92 F. Supp. 2d 294 (S.D.N.Y. 2000) demonstrates how a college’s adherence to the ADA’s “interactive” process of attempting to accom- modate a disabled employee provides protection against an ADA claim. The plaintiff had been diagnosed with depression, and his doctor had recommended a three-day work week as an accommodation. The college complied, but the plaintiff’s performance was unsatisfactory even with the shorter work week. The court ruled that, although the plaintiff had established that he was disabled for ADA purposes, he could not perform the essential functions of his position, and thus was not qualified.

Another case demonstrates the interplay between the Family and Medical Leave Act (FMLA) (Section 4.6.4) and the ADA. A finding that an employer complied with the FMLA does not necessary lead to a finding of compliance with the ADA. A federal trial court rejected a college’s motion for summary judgment in an ADA claim that involved the matter of the employee’s qualifi- cations. In Rogers v. New York University, 250 F. Supp. 2d 310 (S.D.N.Y. 2002), an administrative assistant had taken FMLA leave in order to cope with her mental disorders. Although the employee’s FMLA claim was dismissed because the employee had received the twelve weeks of leave to which she was entitled and did not provide the proper written documentation of her fitness to return to work, the court ruled that her ADA claim must be tried to a jury. Her doctor had stated that an additional month’s leave would have been sufficient to accommodate a return to work; the court ruled that the plaintiff was entitled to demonstrate that alternate positions had been available for which she was qualified. On the other hand, most courts concur that an indefinite leave of absence without a target date of return is not a reasonable accommodation under both state and federal law (see, for example, Scott v. University of Toledo, 739 N.E.2d 351 (Ct. App. Ohio 2000)).

An accommodation that requires other employees to perform essential func- tions of an individual’s job is not required under the ADA. In Piziali v. Grand View College, 2000 U.S. App. LEXIS 1823 (8th Cir. 2000) (unpublished), a fed- eral appellate court upheld a trial court’s grant of summary judgment to the col- lege on the grounds that the plaintiff was not qualified. The accommodations requested by the plaintiff would have required other faculty to perform some of her duties, which the court viewed as essential functions of her position.

IS THE REQUESTED ACCOMMODATION REASONABLE? The law states that an accommodation is not reasonable if it poses an undue hardship for the employer. Thus, indefinite leaves of absence, the creation of new light-duty posi- tions, or the removal of a job’s essential functions are typically viewed as undue hardships. In addition, the employer need not “bump” a nondisabled individ- ual out of a position in order to accommodate an employee who is disabled (Lucas v. W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001)).

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On the other hand, the law and its Interpretive Guidance require an employer to attempt to restructure the position, reassign the individual to a vacant posi- tion, or accommodate the employee in other ways that do not pose an undue hardship. Because so many plaintiffs cannot establish that they are disabled under the ADA, there are relatively few cases that examine the reasonableness of a requested accommodation, particularly those involving colleges or univer- sities. One such case is Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999). Norville, a nurse, sustained a spinal injury that prevented her from engaging in heavy lifting, stretching, or bending. The hospital offered her a transfer to other positions, but the positions were not equivalent in benefits. They involved the loss of seniority and the freezing of her pension benefits, and made her more vulnerable to layoffs. The plaintiff had claimed that vacant posi- tions comparable to her former position were available, but were not offered to her. Although a jury had returned a verdict in favor of the hospital, the appel- late court reversed, stating that the jury instructions were inadequate, and remanded for a new trial.

But in Wright v. N.C. State University, 169 F. Supp. 2d 485 (E.D.N.C. 2000), the trial court awarded summary judgment to the college, rejecting the plain- tiff’s claims that the employer had refused to provide a reasonable accommo- dation. The plaintiff, who was deaf and worked on the night shift in a building considered to be dangerous, requested either a different shift or a transfer to the library. The university had offered her an alternate accommodation: transfer to a new, safer building. The court ruled that the university’s accommodation pro- posal was reasonable, noting that the employer is not required to provide the accommodation that the employee prefers if another accommodation is also reasonable.

THE “NONDISCRIMINATION” DEFENSE. Although most ADA cases involve an employer’s acknowledgment that the employee’s disorder was related in some way to the negative employment action (but not unlawful), in some instances the employer’s defense is that discrimination was unrelated to the employment decision. For example, in King v. Hawkeye Community College, 2000 U.S. Dist. LEXIS 1695 (N.D. Iowa 2000), a professor who was morbidly obese was not returned to his teaching job after taking medical leave for gastric bypass surgery. Although the court ruled that the college’s failure to allow him to return was a breach of contract, it granted the college summary judgment on the employee’s ADA claim. The court found that the individual who decided not to allow the employee to return to work was also morbidly obese, and thus found that disability discrimination was not a factor in the decision.

Although the federal circuits and state supreme courts differ on the issue, several courts have ruled that obesity is a disability under federal or state law. For example, in Cook v. State of Rhode Island, 10 F.3d 17 (1st Cir. 1993), a case brought under the Rehabilitation Act, the court ruled that a state agency’s refusal to rehire a qualified former employee because of its concern that her weight (320 pounds) would interfere with her ability to evacuate patients in the event of an emergency, and its speculation that she had a higher probability of injury or illness than employees who were not obese, violated Section 504. The

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court did not say whether, in its view, obesity is a disability, but rather ruled that her obesity was perceived as a disability, which brought her under the law’s protections. (The ADA has the same protections for nondisabled individuals who are perceived as disabled.) The EEOC has argued that obesity should be characterized as a disability protected under both Section 504 and the ADA.

Although the ADA is similar to the Rehabilitation Act in most respects (see Section 5.2.5), several differences suggest that employees will turn to the ADA first for relief when they believe discrimination has occurred. The ADA includes reassignment to a vacant position as a form of accommodation that the employer must consider (42 U.S.C. § 12111(9)(B)), a requirement absent from the language of the Rehabilitation Act, although it is included in its regulations. The ADA pro- tects individuals with alcoholism, and it is not yet clear whether, or how often, a college or university would be required to offer an employee with alcoholism an opportunity for inpatient rehabilitation. The ADA has strict confidentiality requirements for medical information related to employees’ disabilities (42 U.S.C. § 12112(d)(3)(B)); the interplay between these requirements and the right of a labor union to receive information related to an employment grievance is as yet unresolved.

5.3.5. Age. With the elimination of the age-seventy cap from the ADEA, mandatory retirement for age is no longer legal, with the exception of certain law enforcement and public safety employees. This “uncapping” has required colleges that wish to terminate an older worker either to provide documenta- tion of poor performance or financial reasons for the termination or to provide incentives for the employees to retire.

Although most lawsuits brought by college employees claiming age discrim- ination are unsuccessful for the plaintiffs, colleges can improve their chances of successfully defending such cases by careful documentation of performance problems, training of supervisors to refrain from ageist comments and actions, and consistent treatment of employees irrespective of age. A case illustrative of some of the problems that a college may encounter in defending an age dis- crimination claim is Manning v. New York University, 2000 U.S. Dist. LEXIS 19606 (S.D.N.Y. 2000). The court rejected the university’s motion for summary judgment in an age discrimination case brought by the former director of secu- rity for the university. The director had been terminated at age sixty-seven, according to the university, for “poor communication skills,” a contentious relationship with his supervisors, and inability to represent the university appro- priately to outside agencies. The court, reviewing the plaintiff’s claims, deter- mined that the plaintiff had made a prima facie case of age discrimination based upon the following evidence: the supervisor had made negative comments about the plaintiff’s age and noted the need for “new blood”; the supervisor had stated that the plaintiff would soon be “on the golf course” and need not be involved in contract negotiations; the supervisor insisted that the plaintiff bring his thirty-year-old assistant to meetings but did not require the same of other employees at the plaintiff’s level; the supervisor’s decision to promote all but the three oldest directors to assistant vice presidents; and the assignment of an

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important security responsibility to the plaintiff’s young assistant rather than to the plaintiff. Furthermore, there were no written documents criticizing the plaintiff’s performance, and he had received regular merit raises. The judge ruled that these allegations raised material factual issues that must be resolved at trial.

Similarly, remarks by trustees and a college president that could be interpreted as ageist were sufficient to persuade a court to deny summary judgment to a col- lege accused of age discrimination in the termination of the former academic vice president. In Lepanto v. Illinois Community College District #525, 2000 U.S. Dist. LEXIS 46 (N.D. Ill. 2000), a new president told the academic vice president, who had served in that role for eleven years, that he wanted a “fresh start” and a “new mix” of leadership, and terminated the plaintiff at age sixty-one. Although the plaintiff was unable to persuade the court that these remarks, in addition to statements by trustees that there was a new majority on the board, “a younger group of people trying to break up this good old boy network who had their way for thirty years at the college,” were direct evidence of age dis- crimination, the remarks were sufficient to support a prima facie case of discrimination. Given the lack of written criticism of the vice president’s perfor- mance, the court ruled that a jury might conclude that the defendants’ claim of poor performance was a pretext for discrimination.

On the other hand, if the college has investigated and documented an employee’s performance problems, the college’s motion for summary judgment may be successful. For example, in Debs v. Northeastern Illinois University, 153 F.3d 390 (7th Cir. 1998), a former chief engineer in the university’s heating plant challenged his demotion at age fifty-five, alleging age discrimination. The uni- versity, after receiving complaints from several employees who had worked for the plaintiff, had engaged an outside consultant to investigate the employees’ complaints, which included allegations of safety violations as well as dishon- esty and abusive behavior toward subordinates. The investigator’s report substantiated the employees’ complaints and recommended that the plaintiff be relieved of supervisory responsibility. A state civil service Merit Board upheld the demotion, and the plaintiff filed a claim with the EEOC. This lawsuit followed.

The sole evidence of age discrimination provided by the plaintiff was an alle- gation that the plaintiff’s supervisor had asked him when he was going to retire and a comment that the plaintiff was too old to work in the heating plant. These allegations were insufficient, according to the court, to rebut the university’s legitimate nondiscriminatory reasons for demoting him. The court found the investigator’s report credible because of her independence, and because she did not make the demotion decision.

In order to be helpful to the defendant college, the documentation must be contemporaneous and untainted by age-related language. In EEOC v. Board of Regents of the University of Wisconsin System, 288 F.3d 296 (7th Cir. 2002), a federal appellate court affirmed a jury verdict against the university for ter- minating four employees of the University of Wisconsin (UW) Press for age- related reasons. Although the plaintiffs could not have brought this claim

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against the university in federal court because of Kimel’s holding that state entities are protected from ADEA claims by sovereign immunity (see Section 5.2.6), the EEOC can bring claims on their behalf without constitutional limitations.

The UW Press was facing financial difficulties and decided to reduce its staff by four. The director of the Press selected the four oldest employees for layoff. When asked for a rationale for their selection (after determining who would be laid off), he created a written justification for selecting these four individuals, but he apparently did not conduct an overall evaluation of all the Press employ- ees. The responsibilities of the laid-off workers were assumed by younger employees, some of whom were hired at the same time or shortly after the plaintiffs were laid off. According to the court, the justification document included language that could be viewed as age biased, and included several incorrect statements about the purportedly superior skills of younger staff. The court also upheld the jury’s finding that the director’s conduct was willful, a finding that allows a court to order that double damages be paid to prevailing plaintiffs.

Early retirement incentive programs are regulated by the ADEA, as amended by the Older Workers Benefit Protection Act (OWBPA), discussed in Section 5.2.6. The amendments to the ADEA that took effect January 1, 1988, require, among other things, that institutions continue pension contributions without regard to the individual’s age. An opinion by the U.S. Court of Appeals for the Ninth Circuit applied the provisions of the OWBPA to a university’s disability and retirement plans. In Kalvinskas v. California Institute of Technology, 96 F.3d 1305 (9th Cir. 1996), the plaintiff, a research scientist at CalTech’s Jet Propul- sion Laboratory, developed Parkinson’s disease. He took a medical leave and began receiving long-term disability benefits. CalTech’s disability plan provided that disability benefits could be reduced by pension payments or other disabil- ity benefits. The college’s retirement plan did not allow the payment of pension benefits until an employee actually retired.

When the plaintiff reached age sixty-five, he was eligible to retire but chose not to. He was still receiving disability benefits. CalTech then offset his disabil- ity benefits by the amount of pension payments he would have received had he chosen to retire. Since the retirement benefits exceeded the disability benefits, the plaintiff received no payments after the age of sixty-five. He sued CalTech under the ADEA and California’s nondiscrimination law, arguing that the offset policy forced him to retire at age sixty-five.

This was a case of first impression for the interpretation of provisions added to the ADEA by the OWBPA. The court was required to interpret two provisions of the ADEA: Section 4(f)(2), which forbids any action that would “require or permit the involuntary retirement of any individual,” and Section 4(1)(3)(B), which permits the offset of benefits in order to prevent “double dipping”— circumstances in which a retiree would receive a windfall of both pension benefits and disability benefits. The appellate court ruled that reducing the plaintiff’s disability benefits to zero effectively forced him to retire, a violation

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of Section 4(f)(2). Given the college’s actions, said the court, a reasonable person would have believed he had no choice but to retire. With respect to the application of Section 4(1)(3)(B), the court examined the legislative history of the OWBPA. Since the plaintiff was not in a position to receive a windfall, this section did not protect CalTech’s actions.

More recently, several retired employees sued the University of Rhode Island, asserting that the voluntary retirement incentive plan (VRIP) that they accepted violated both state and federal age discrimination laws. The plan provided that the university would pay a stipend for retiree health benefits that was based on the actual cost of these benefits. Employees who were under sixty-five when they retired received a $5,000-per-year health benefit stipend, while employees aged sixty-five or older received a stipend of $2,000 per year because they were eligible for Medicare. The court determined that, under the “safe harbor” pro- visions of the ADEA (29 U.S.C. § 623(f)(2)(B)(ii)) (discussed in Section 5.2.6), the VRIP was voluntary and the difference in stipends was linked directly to the differences in the actual cost of medical benefits.

The complexity of designing retirement incentive programs that do not run afoul of the ADEA may discourage some colleges from offering these programs. (For a discussion of these issues, see Christopher Condeluci, Comment, “Winning the Battle but Losing the War: Purported Age Discrimination May Dis- courage Employers from Providing Retiree Medical Benefits,” 35 J. Marshall L. Rev. 709 (2002). See also Marianne C. DelPo, “Too Old to Die Young, Too Young to Die Now: Are Early Retirement Incentives in Higher Education Necessary, Legal, and Ethical?” 30 Seton Hall L. Rev. 827 (2000).)

5.3.6. Religion. Discrimination on the basis of religion is one of the prohibited forms of discrimination under Title VII (42 U.S.C. § 2000e-2(a)), subject to an exception for situations where a particular religious characteristic is a bona fide occupational qualification for the job (42 U.S.C. § 2000e-2(e)(1)). A related exception, applicable specifically to educational institutions, permits the employment of persons “of a particular religion” if the institution is “owned, supported, controlled, or managed” by that religion or if the institution’s cur- riculum “is directed toward the propagation of a particular religion” (42 U.S.C. § 2000e-2(e)(2)). The application of nondiscrimination laws to religious colleges is discussed in Section 5.5.

Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief” (42 U.S.C. § 2000e(j)). The same section of the statute requires that an employer “reasonably accommodate to” an employee’s religion unless the employer can demonstrate an inability to do so “without undue hardship.”28 In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the

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28Cases and authorities are collected in Andrew M. Campbell, Annot., “What Constitutes Employer’s Reasonable Accommodation of Employee’s Religious Preferences Under Title VII of Civil Rights Act of 1964,” 134 A.L.R. Fed. 1.

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U.S. Supreme Court narrowly construed this provision, holding that it would be an undue hardship to require an employer to bear more than minimal costs in accommodating an employee’s religious beliefs. To further explicate the statute and case law, the EEOC has issued revised guidelines on the employer’s duty under Title VII to reasonably accommodate the religious practices of employees and applicants (29 C.F.R. Part 1605).

The Supreme Court addressed religious discrimination a second time in Anso- nia Board of Education v. Philbrook, 479 U.S. 60 (1986). In Ansonia a school- teacher had asked to use the paid “personal days” provided by the collective bargaining agreement for the observance of religious holidays. The collec- tive bargaining agreement provided that religious holidays taken beyond those that were official school holidays would be taken as unpaid leave. Philbrook sued, alleging religious discrimination under Title VII and stating that the school board should have accommodated his religious needs by permitting him to use paid leave. In analyzing the scope of the “reasonable accommodation” require- ment, the Court ruled that the employer need not accede to the employee’s pre- ferred accommodation, but could offer its own as long as that accommodation also met the “reasonableness” criterion articulated in Hardison. The employer did not have to prove that the employee’s preferred accommodation would pose an undue hardship; it only had to prove that the accommodation it offered was a reasonable one.

Most litigation involving alleged religious discrimination against college staff involves scheduling disputes, as in the Hardison case, discussed above. For exam- ple, in Gay v. SUNY Health Science Center of Brooklyn, 1998 U.S. Dist. LEXIS 20885 (E.D.N.Y. 1998) (unpublished), a federal trial court rejected the claim of a hospital orderly that the hospital’s decision to change his schedule was a form of religious discrimination. The hospital had accommodated the orderly, a Muslim, by allowing him to work a four-day week, with Friday off as a religious accommodation. When the hospital’s staffing needs changed, the plaintiff was also required to work Friday mornings, but was allowed to leave in time to attend religious services on Friday.

Other conflicts involving alleged religious discrimination involve conflicts between an employee’s religious beliefs and work assignments. For example, in Shelton v. University of Medicine and Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000), a nurse working in the labor and delivery unit at the university’s hospital refused because of her religious beliefs to accept assignments that involved the termination of pregnancies. After she refused to participate in emergency procedures determined necessary to save the life of the mother, the hospital offered her a transfer to the newborn intensive care unit as an accom- modation to her religious beliefs. The nurse refused the transfer, however, because she had been told that newborn infants with serious medical prob- lems were not treated but were allowed to die. Because there were no other positions for which the nurse was qualified, she was terminated. Although the trial court determined that the plaintiff had established a prima facie case of religious discrimination, the court found that the hospital had attempted to

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accommodate her. Because there was no corroboration for the claim that infants were untreated and allowed to die, the plaintiff could not rebut the employer’s nondiscriminatory reason for her termination. The appellate court affirmed the trial court’s summary judgment award.

The line between allowing an employee the right to exercise his or her reli- gion freely and the employer’s right to forbid proselytizing in the workplace may be difficult to draw, particularly for publicly supported colleges. For example, in Knight v. Connecticut Department of Public Health, 275 F.3d 156 (2d Cir. 2001), two employees of state agencies were disciplined for prosely- tizing clients of the agency during their work assignments. The court assumed without deciding that the speech involved a matter of public concern, but ruled that, because the proselytizing upset the clients in both instances, the speech was disruptive and thus was not entitled to First Amendment protec- tion. The court ruled further that allowing these employees to proselytize at work was not a reasonable accommodation for their religious beliefs, because it hampered the state agency’s ability to provide services on a religion-neutral basis.

But if the employee’s religious beliefs or behavior do not interfere with work performance, and discipline is imposed solely because of those beliefs, a court may find that discrimination has occurred. In EEOC v. University of Chicago Hos- pitals, 276 F.3d 326 (7th Cir. 2002), a federal appellate court reversed an award of summary judgment for the defendant hospital, ruling that the hospital staff had engaged in religious discrimination. A supervisor had discharged a South- ern Baptist staff recruiter because the recruiter used her own church as a source of hospital employees. The supervisor had called the plaintiff a “religious fanatic,” had ordered her to remove a religious calendar and clock from her desk, and had fired another supervisor for refusing to terminate the plaintiff after criticizing her for “bringing religion into the workplace.” The defendant hospital had not provided evidence of any disruption caused by the plaintiff’s religious beliefs, and the evidence was sufficient, said the court, to reverse the summary judgment award and send the case to a jury.

According to the Supreme Court in Hardison, the employer’s responsibility to provide a reasonable accommodation for an employee’s religious beliefs is not a heavy one. When faced with a request for an accommodation, such as the reallocation of job responsibilities so that those that are offensive to the indi- vidual need not be performed, or revising work schedules so that an employee may attend religious services, the employer needs to determine whether these requests will pose an undue hardship. An undue hardship may be financial, or it may involve the employer’s determination that the request will disrupt the efficiency or effectiveness of the workplace. Although the reasonable accom- modation requirement under Title VII is easier to satisfy than the accommoda- tion requirement under the Americans With Disabilities Act (see Section 5.2.5), the employer will need to document its attempt(s) to accommodate the reli- gious needs of its workers in order to defend successfully a Title VII religious discrimination claim.

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5.3.7. Sexual orientation. Discrimination on the basis of sexual orienta- tion is not prohibited by Title VII, nor is there any other federal law directed at such discrimination. However, seventeen states prohibit employment discrimi- nation on the basis of sexual orientation in both the public and private sectors,29 and numerous municipalities have enacted similar local laws pro- hibiting such discrimination. Laws prohibiting employment discrimination against gays were repealed in Iowa and Maine, and protections for gay employ- ees in Ohio and Louisiana have been withdrawn.

Employment issues related to sexual orientation go beyond the issues—such as discipline, discharge, or salary discrimination—faced by other protected class members. Access to benefits for unmarried same-sex partners, access to campus housing reserved for heterosexual couples, and the effect of the mili- tary’s refusal to recruit homosexuals add to the complexity of dealing with this issue.

The U.S. Supreme Court has not yet ruled in a case directly involving alleged employment discrimination on the basis of sexual orientation. The Court’s opin- ion in Oncale, discussed in Section 5.3.3.3, involved same-sex sexual harass- ment, rather than sexual orientation discrimination, and was brought under Title VII. In March 2003, however, the Court overruled its earlier holding in Bowers v. Hardwick, 478 U.S. 186 (1986) that had upheld a Georgia law crimi- nalizing sodomy. In Lawrence v. Texas, 539 U.S. 558 (2003), the Court struck down a Texas law that made sodomy a criminal offense on due process clause grounds. The Court stated that the individuals’ “right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. . . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life.”

On the other hand, the Court upheld the right of the Boy Scouts of America to exclude homosexuals from positions as volunteer leaders, ruling that the First Amendment’s freedom of association protections prohibited New Jersey from using its nondiscrimination law, which includes sexual orientation as a protected class, to require that the Boy Scouts accept leaders who are homosexual. (Boy Scouts of America v. Dale, 530 U.S. 640 (2000)).

Although the EEOC has stated that Title VII does not extend to sexual orien- tation discrimination (EEOC Compliance Manual § 615.2(b)(3)), state and fed- eral courts have been more responsive to sexual orientation discrimination claims brought under Section 1983 of the Civil Rights Act (see Section 3.5 of

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29As of late 2005, the following states prohibited discrimination on the basis of sexual orientation in both private and public sector employment: California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Wisconsin. The District of Columbia also prohibits such discrimination in both private and public employment. In six states, sexual orientation dis- crimination is prohibited in public employment by law or Executive Order (Alaska, Arizona, Colorado, Delaware, Indiana, Kentucky, Louisiana, Montana, Pennsylvania, and Washington) (see http://www.lambdalegal.org).

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this book), alleging violations of the Fourteenth Amendment’s equal protection clause.30 For example, in Miguel v. Guess, 51 P.3d 89 (Wash. Ct. App. 2002), a state appellate court rejected the employer’s motion to dismiss a claim brought by a hospital employee under Section 1983 that her dismissal was a result of her sexual orientation, and that the dismissal violated the equal protection clause. Although the employee was allowed to proceed on her Section 1983 claim, the court rejected her claim that a dismissal based on one’s sexual ori- entation violated the public policy of the State of Washington because the state legislature had not enacted a law prohibiting discrimination on the basis of sex- ual orientation (Washington’s protection for gay employees is by Executive Order, not statute). Similarly, in Lovell v. Comsewogue School District, 214 F. Supp. 2d 319 (E.D.N.Y. 2002), a federal trial court denied the school district’s motion to dismiss a teacher’s claims that the school principal was less respon- sive to claims of sexual orientation harassment than he was to other types of harassment claims. The court stated that treating harassment complaints on the basis of sexual orientation differently than other types of harassment claims was, if proven, an equal protection clause violation, and actionable under Sec- tion 1983. On the other hand, a college that responded promptly to a staff mem- ber’s complaints of sexual orientation harassment was successful in obtaining a summary judgment when the staff member resigned and then sued under Section 1983, asserting an equal protection clause violation (Cracolice v. Metro- politan Community College, 2002 U.S. Dist. LEXIS 22283 (D. Neb., November 15, 2002)).

Although not all same-sex harassment claims involve claims of sexual ori- entation discrimination, there is considerable overlap between the two. Same- sex harassment claims are potentially actionable under Title VII, while claims of sexual orientation discrimination and/or harassment are not. (The following discussion is adapted from Mary Ann Connell, “Evolving Law in Same-Sex Harassment and Sexual Orientation Discrimination,” 23rd Annual National Conference on Law and Higher Education, Stetson University College of Law, February 18, 2002.)

The U.S. Supreme Court recognized a cause of action for same-sex sexual harassment in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1997), dis- cussed in Section 5.3.3.3. Connell divides post-Oncale claims of same-sex harassment into three categories: (1) “desire” cases, in which there is evidence that the harasser sexually desires the target; (2) “hate” cases, in which there is evidence that the harasser is hostile to the presence of a particular sex in the

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30Cases and authorities are collected in Elizabeth Williams, Annot., “Same-Sex Harassment Under Title VII (42 U.S.C. §§ 2000e et seq.) of Civil Rights Act,” 135 A.L.R. Fed. 307; Norma Rotunno, Annot., “Same-Sex Sexual Harassment Under State Antidiscrimination Laws,” 73 A.L.R.5th 1; Robin Cheryl Miller, Annot., “Validity, Construction, and Application of State Enactment, Order, or Regulation Expressly Prohibiting Sexual Orientation Discrimination,” 82 A.L.R.5th 1; and Robin Cheryl Miller, Annot., “Federal and State Constitutional Provisions as Prohibiting Discrimi- nation in Employment on Basis of Gay, Lesbian, or Bisexual Sexual Orientation or Conduct,” 96 A.L.R.5th 391.

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workplace; and (3) cases in which the court examines the alleged harasser’s treatment of both sexes in the workplace.

An illustrative “desire” case is Mota v. University of Texas Houston Health Science Center, 261 F.3d 512 (5th Cir. 2001). The plaintiff claimed that he was harassed repeatedly by his male supervisor and department chair, who made unwanted and offensive sexual advances toward the plaintiff on several occa- sions at out-of-town conferences. The jury found for the plaintiff against the university (the alleged harasser had settled with the plaintiff prior to trial); the appellate court upheld the jury verdict, ruling that the university had failed to respond properly and to correct the harassment.

“Hatred” cases involve claims either that the plaintiff was harassed because he or she did not conform to gender stereotypes, or because the alleged harasser was motivated by contempt for the individual’s sexual orientation. Plaintiffs bringing hatred cases based on sex stereotyping have been success- ful in a limited number of cases, but plaintiffs attempting to attack alleged harassment based on sexual orientation have been unsuccessful under Title VII. For example, the U.S. Court of Appeals for the Ninth Circuit found for a plaintiff who claimed that he was harassed because his behavior did not conform to the male stereotype. In Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864 (9th Cir. 2001), the court ruled that a four-year pattern of verbal abuse by coworkers based on the plaintiff’s effeminate behavior violated Title VII. But those courts that have characterized a same-sex harassment claim as grounding in sexual orientation discrimination rather than stereotyping have rejected plaintiffs’ Title VII claims (see, for example, Dandan v. Radisson Hotel Lisle, 2000 U.S. Dist. LEXIS 5876 (N.D. Ill. March 28, 2000)), even if the harass- ment was instigated by individuals who disliked the plaintiff’s nonconforming behavior.

An en banc ruling by the U.S. Court of Appeals for the Ninth Circuit, if fol- lowed by other circuits, may enable plaintiffs to establish sexual orientation harassment claims under Title VII. In Rene v. MGM Grand Hotel, Inc., 243 F.3d 1206 (9th Cir. 2001), reversed and remanded, 305 F.3d 1061 (9th Cir. 2002) (en banc), the plaintiff asserted that he had endured severe and pervasive offen- sive physical conduct of a sexual nature, including numerous assaults, because of his perceived homosexuality. The trial court had granted the employer’s motion for summary judgment, ruling that the plaintiff had not stated a claim under Title VII because the law did not prohibit discrimination on the basis of sexual orientation. A split three-judge panel of the Ninth Circuit agreed. That ruling was vacated, and the eleven-judge en banc court reversed. With four dissenting votes, the judges ruled that

an employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrel- evant, and neither provides nor precludes a cause of action. It is enough that the harasser have [sic] engaged in severe or pervasive unwelcome physical conduct of a sexual nature. We therefore would hold that the plaintiff in this case has stated a cause of action under Title VII [305 F.3d at 1063–64].

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The en banc court justified its reasoning by explaining that the conduct in Rene was similar to the offensive conduct in Oncale, which occurred in an all- male work environment, as did the harassment in Rene. But the ruling in this case appears to be a departure from the language of Oncale, which states that the offensive conduct must be directed at the target because of his or her sex; Rene appears to base its ruling on the sexual nature of the conduct, not the sex of the target. Two judges wrote opinions concurring in the result, but stating that they believed the proper theory of the case was sexual stereotyping, citing Price Waterhouse v. Hopkins (Section 5.2.1) and the Ninth Circuit’s opinion in Nichols, discussed above. The dissenters disagreed with the majority’s assertion that the sex or motive of the harasser was irrelevant as long as the conduct was sexual in nature.

The third category of post-Oncale cases involves claims that both men and women were subject to offensive sexualized treatment at work. In these cases, if the employer can demonstrate that both sexes were equally subject to the same type of offensive behavior, there is no Title VII violation (see, for exam- ple, Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000)). But in some cases, the courts have ruled that the motives for the sexualized treatment of men were dif- ferent than the motives of the offensive behavior toward women, and have allowed the claims to go forward (see, for example, Steiner v. Showboat Operating Company, 25 F.3d 1459 (9th Cir. 1994)).

Title IX prohibits discrimination on the basis of sex at colleges and universi- ties receiving federal funds, and its enforcement guidelines specifically address the possibility of claims involving same-sex discrimination or harassment (OCR, Revised Sexual Harassment Guidance: Harassment of Students by School Employ- ees, Other Students, or Third Parties (available at http://www.ed.gov/ocr/ shguide/index.html)). Most federal courts, however, have ruled that claims of employment discrimination cannot be brought under Title IX because Title VII provides the federal remedy for sex discrimination (see Section 5.2.3).

In addition to employment discrimination or harassment claims, some col- leges have faced litigation concerning the availability of medical and other benefits for the partners of gay employees. According to a survey conducted by the Lambda Legal Defense and Education Fund in mid-2001, more than eighty colleges offer domestic partner benefits to their employees (see http://www. lambdalegal.org/cgi-bin/iowa/documents/record?record-21).

Access to employment benefits for the partners of homosexual employees is a matter generally governed by state or local law.31 One state, Vermont, has enacted a law that allows same-sex couples to enter into civil unions, a sta- tus that provides the couple with the same legal benefits and responsibilities enjoyed by married heterosexual couples (Vt. Stat. Ann. Tit. 32, 3001(c)). Other state legislatures may follow suit, although there is considerable opposition to these laws and their future is uncertain. Unless state law forbids it, a college may offer benefits to unmarried domestic partners, and may choose to limit this

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31As of late 2005, twelve states offered domestic partnership benefits to public employees (see http://www.lambdalegal.org).

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benefit to same-sex domestic partners on the grounds that they are not allowed to marry.

With respect to the availability of domestic partner benefits in states that have not enacted civil union laws, state courts have made opposing rulings in litigation concerning health insurance coverage for the domestic partners of gay employees. The state supreme court of Alaska ruled that the university’s refusal to provide health insurance for the domestic partners of unmarried employees was a violation of the Alaska Human Rights Act (AS 18.80.220(a)(1)), which forbids employment discrimination on the basis of marital status. However, a New Jersey appellate court has ruled that Rutgers University did not violate state law when it refused to provide health benefits to the domestic partners of gay employees.

In the Alaska case, University of Alaska v. Tumeo, 933 P.2d 1147 (Alaska 1997), the court noted that the university had admitted that its position on health insurance constituted discrimination on the basis of marital status. But the university argued that the Human Rights Act’s prohibition against such dis- crimination did not apply to these circumstances because the plaintiffs were not “similarly situated” to married couples in that they were not legally obligated to pay the debts of their domestic partners. The state’s high court disagreed, saying that the university had three options, all of which complied with the Human Rights Act.

1. It could refuse to provide health insurance for spouses of its employees;

2. It could rewrite its plan to include within the category of “dependents” all individuals for whom its employees provide the majority of financial support;

3. It could rewrite the plan to specifically include coverage for domestic partners and could require employees and their partners to provide affidavits of spousal equivalency [933 P.2d at 1148].

Nor did the state laws governing health benefits for public employees super- sede the Human Rights Act or prohibit the university from providing health insurance for unmarried domestic partners. Stating that the “clear language” of the law prohibits marital status discrimination, the court unanimously ruled for the plaintiff-employees. (In 1995, the university had changed its policy to provide benefits to those who provided “spousal equivalency” affidavits; in the Tumeo litigation, it had sought clarification of whether the law actually required such a program; see Lisa Guernsey, “State Courts Split on Benefits for Domes- tic Partners,” Chron. Higher Educ., March 28, 1997, A13.)

The New Jersey case, Rutgers Council of AAUP Chapters v. Rutgers, The State University, 689 A.2d 828 (N.J. Super. A.D. 1997), certification denied, 707 A.2d 151 (N.J. 1998), differs from the Alaska situation in several respects. First, although the state’s Law Against Discrimination outlaws employment discrim- ination on the basis of both marital status and sexual orientation, the law con- tains an exemption for employee benefits plans. Therefore, the court was required to examine the wording of the state’s statute on health benefits for state

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employees, which defines “dependents” as children of married spouses. Find- ing no language in the benefits statute that would compel the university to pro- vide insurance for unmarried domestic partners, the trial judge noted that the impetus for providing such benefits should come from the legislature, not the courts; a first step would be to legalize marriage between gay or lesbian cou- ples, according to the judge. Concurring judges noted that, although they could not disagree with the legal analysis, they found the decision “distasteful” and unfair, and urged the legislature to take action. The legislature did so, passing the Domestic Partnership Act (N.J. Stat. §§ 26:8A-1 et seq.) in 2004. The law requires the state to provide health benefits to dependent domestic partners of state employees.

In a third case, an Oregon appellate court ruled that the state constitution requires the Oregon Health Sciences University to provide life and health insur- ance benefits for the domestic partners of gay and lesbian employees. In Tanner v. Oregon Health Sciences University, 971 P.2d 435 (Ore. Ct. App. 1998), three lesbian nursing professionals challenged the university’s refusal to provide med- ical and dental insurance benefits for their domestic partners. (Although the university had adopted an employee benefit plan during the pendency of this litigation that provided benefits for domestic partners of its employees, it maintained that it was not legally required to do so.)

The plaintiffs presented both statutory and constitutional claims. In regard to the former, the plaintiffs had argued that the university’s policy of “treating all unmarried employees alike” with respect to the availability of benefits for domestic partners was a violation of the state’s nondiscrimination law, which includes sexual orientation as a protected class, because homosexual couples could not marry. Although the court found that the university’s “practice of denying insurance benefits to unmarried domestic partners of its homosexual employees had an otherwise unlawful disparate impact on a protected class,” it also found that the university’s benefits policy was not a subterfuge to dis- criminate against homosexuals, and thus, under Oregon statutory law, the uni- versity did not engage in an unlawful employment practice (971 P.2d at 444).

But the constitutional claim was a different matter. The court had to deter- mine whether unmarried homosexual couples are members of a suspect class. The court determined that they were:

[S]exual orientation, like gender, race, alienage, and religious affiliation is widely regarded as defining a distinct, socially recognized group of citizens, and certainly it is beyond dispute that homosexuals in our society have been and continue to be the subject of adverse social and political stereotyping and preju- dice [971 P.2d at 447].

Although there was no showing that the university intended to discriminate against the plaintiffs on the basis of their sexual orientation, “its actions have the undeniable effect of doing just that. . . . What is relevant is the extent to which privileges or immunities are not made available to all citizens on equal terms” (971 P.2d at 447). Since homosexual couples were not permitted to

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marry, said the court, denying homosexual employees benefits for their domes- tic partners on the basis of marital status violated Article I, Section 20 of the Oregon constitution.

The issue of domestic partner benefits has been addressed in two opinions of the Vermont Labor Relations Board. In the first, Grievance of B.M.S.S. et al., 16 VLRB 207 (1993), a case arising prior to the passage of the Vermont Civil Union law, the state labor board ruled that the university had committed an unfair labor practice under the State Employee Labor Relations Act (3 V.S.A. § 901 et seq.) by denying medical and dental benefits to the partners of gay and lesbian employees. Section 961(6) of the law prohibits discrimination on the basis of sexual orientation. The labor board concurred with the grievants’ char- acterization of the denial of benefits as disparate impact discrimination, fol- lowing the theory of Griggs v. Duke Power Co. (discussed in Section 5.2.1), and ordered the university to provide medical and dental benefits to the domestic partners of its gay and lesbian employees within sixty days.

In a second case involving the same university, Willard Miller v. UVM, 24 VLRB 1 (2001), an unmarried faculty member claimed that the university’s refusal to provide medical and dental benefits to his female domestic partner violated the university’s own policies against discrimination on the basis of sexual orientation. Shortly after the Vermont Civil Union law was passed, the university notified all of its employees that dependents (whose definition includes spouses or “same-sex spousal equivalents”) would be entitled to med- ical and dental benefits only if the employee was either married to the spouse or had entered a civil union with a “same-sex spousal equivalent.” The labor board reasoned that there was no disparate impact on unmarried heterosexual employees with domestic partners because there was no legal impediment to their marrying. Now that employees could qualify for health benefits for spouses by either marrying or entering a civil union, there was no disparate impact on the grounds of sexual orientation. The labor board denied Miller’s claim.

The military services’ ban on homosexuals has posed several problems for col- leges whose employment and student life policies prohibit discrimination on the basis of sexual orientation. The military’s policy has raised issues of whether the military may recruit students at campus locations, whether a campus is will- ing to host Reserve Officer Training Corps units, and eligibility for research funds from the U.S. Department of Defense. Under current federal law, institutions whose nondiscrimination policies include protections for sexual orientation or gender identity must, however, give the military access to their students for recruitment purposes. The “Solomon Amendment,” discussed in Section 13.4.3, requires that colleges provide such access or risk the loss of federal funds.

Sec. 5.4. Affirmative Action

5.4.1. Overview. Affirmative action has been an intensely controversial con- cept in many areas of American life. While the ongoing debate on affirmative action in student admissions (Section 8.2.5) parallels in its intensity the

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affirmative action debate on employment, the latter has been even more contro- versial because it is more crowded with federal regulations and requirements. In addition, beneficiaries of affirmative action in employment may be more visible because they compete for often-scarce openings, particularly for faculty or other professional positions.

Affirmative action in employment is governed by federal Executive Orders (Section 5.2.8) and related federal contracting statutes, by Title VII of the Civil Rights Act of 1964 (Section 5.2.1), and by the equal protection clause of the Constitution’s Fourteenth Amendment (Section 5.2.7). The affirmative action requirements of the Executive Orders apply to contractors with fifty or more employees who receive federal contracts of at least $50,000 (which covers most colleges and universities), while the equal protection clause applies only to pub- lic colleges and universities. Title VII applies to both private and public colleges. Each of these authorities poses somewhat different obligations for employers and involves different legal analyses.

Affirmative action became a major issue because the federal government’s initiatives regarding discrimination have a dual aim: to “bar like discrimination in the future” and to “eliminate the discriminatory effects of the past” (Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)). Addressing this latter objective under Title VII, courts may “‘order such affirmative action as may be appropriate’” (Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), quot- ing Albemarle). Affirmative action can be appropriate under Franks even though it may adversely affect other employees, since “a sharing of the burden of the past discrimination is presumptively necessary.” Under statutes other than Title VII, and under Executive Orders 11246 and 11375, courts or administrative agencies may similarly require employers, including public and private post- secondary institutions, to engage in affirmative action to eliminate the effects of past discrimination.

Executive Orders 11246 and 11375 (see Section 5.2.8) have been the major focus of federal affirmative action initiatives. Aside from their basic prohibition of race, color, religion, sex, and national origin discrimination, these executive orders require federal contractors and subcontractors employing fifty or more employees and receiving at least $50,000 in federal contracts to develop affir- mative action plans. The implementing regulations were revised in 2000 (65 Fed. Reg. No. 219, November 13, 2000) and are codified at 41 C.F.R. Parts 60-1 and 60-2. Section 60-1.40 of the regulations requires that a contractor have an affir- mative action program. 41 C.F.R. Section 60-2.10 lists the required elements of an affirmative action program. One requirement is “placement goals” (41 C.F.R. § 60-2.16), which the contractor must establish in light of the availability of women and minorities for each job group. The regulation states that “placement goals may not be rigid and inflexible quotas which must be met, nor are they to be considered as either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden” (41 C.F.R. § 60-2.16 (e)(1)).

An institution’s compliance with affirmative action requirements is monitored and enforced by the Office of Federal Contract Compliance Programs (OFCCP),

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