Employment

This front page will reflect our most current information on employment law affecting educational institutions.

University of Texas Southwestern Medical Center v. Nassar:
Case No. 12-484, June 24, 2013

The question before the Court was whether the lessened  causation standard (the motive to discriminate was one of the employer’s  motives, even if the employer had other lawful motives) is applicable  to claims of employer retaliation under §2000e–3(a). The Court held  “Title VII retaliation claims must be proved according to traditional  principles of but-for causation, not the lessened causation test stated  in §2000e–2(m). This requires proof that the unlawful retaliation would  not have occurred in the absence of the alleged wrongful action or  actions of the employer.”  In reaching this decision the Court noted as  follows:

The proper interpretation and  implementation of §2000e–3(a) and its causation standard have central  importance to the fair and responsible allocation of resources in the  judicial and litigation systems. This is of particular significance  because claims of retaliation are being madewith ever-increasing  frequency. The number of these claims filed with the Equal Employment  Opportunity Commission (EEOC) has nearly doubled in the past  15years—from just over 16,000 in 1997 to over 31,000 in 2012. EEOC,  Charge Statistics FY 1997 ThroughFY 2012,  http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (as visited  June 20, 2013, and available inClerk of Court’s case file). Indeed, the  number of retaliation claims filed with the EEOC has now outstripped  those for every type of status-based discrimination except race.

See the Chronicle article on the case  from June 24, 2013. ACE had filed a brief in this case in favor of the  University, arguing that mixed motives standards are hard to disprove in  court.

---

Vance v. Ball State University et al.:
No. 11-556 Decided June 24, 2013. In this case the University was not vicariously liable for a racially  hostile work environment. The Court held that an employee is a  supervisor for purposes of vicarious liability under Title VII only if  he or she is empowered by the Employer to take tangible employment  actions against the victim of the harassment. If the harassing employee  is the victim’s co-worker, the employer is liable only if it was  negligent in controlling working conditions. See the Chronicle article  titled Supreme Court Rules for Ball State U. in Workplace Harassment Case.

---

Final Rule on Medicaid and Children’s Health Insurance Program:
Essential  Health Benefits in Alternative Benefit Plans, Eligiblity Notices, Fair  Hearings and Appeal Processes and Premiums and Cost Sharing;  Exchange: Eligiblity and Enrollment, to be published in July 15, 2103  Federal Register. All 606 pages.See page 356 for  the statement that a simple attestation from an applicant that he or  she qualifies will suffice for an applicant applying to an exchange.

---

One Year Delay on Implementation of Employer Mandate, July 2, 2013:
Announcement by Treasury (Assistant Secretary for Tax Policy)

Treasury states it will provide an additional year before the Affordable Care Act (ACA) mandatory employer and insurer reporting requirements begin, and will provide formal guidance concerning the transition during the week of July 8. The transition relief will make it impractical to determine which employers owe shared responsibility  payments (under section 4980H) for 2014.  The government thus extends transition relief to employers on shared responsibility payments.  These payments will not apply for 2014.  Any employer shared responsibility  payments will not apply until 2015. The contraceptive mandate is not  affected by this rule.

---

National Association of Manufacturers, et al. v. NLRB,
No. 12-5068 consolidated with 12-5138, Decided May 7, 2013. (U.S. C.A. D.C. Circuit)

The U.S. Court of Appeals for the DC Circuit invalidated the entire  NLRB final rule issued August 30, 2011 requiring employers to post  notice of employee rights. After a brief discussion of recess  appointments, the court turned to section 8(c) of the act which states:

The expressing of any views, argument, or  opinion, or the dissemination thereof, whether in written, printed,  graphic, or visual form, shall not constitute or be evidence of an  unfair labor practice under any of the provisions of this [Act], if such  expression contains no threat of reprisal or force or promise of  benefit.

The court then noted that the Board’s rule violates this section of  the LMRA by making the employer’s failure to post an unfair labor  practice, and then also by allowing the failure to be evidence of  anti-union animus.

Since Subpart B of the Final Rule cannot be severed from Subpart A, the court held the entire rule to be invalid.

---

Revised I-9 Form: Effective starting 3/8/2013, with a grace period until May 7, 2013. See the USCIS web page on the new form. Revisions to  the form include additional data fields (employee’s foreign passport  information, if applicable, and e-mail addresses), improved  instructions, and expanding the form from one to two pages.

---

Brief Amici Curiae Filed March 11, 2103 by American Council on Education and others in Supreme Court Case of University of Texas Southwestern Medical Center v. Naiel Nassar, supporting Texas and arguing Congress has not authorized plaintiffs to use the mixed motive standard to prove retaliation.