Discrimination and Sexual Harassment

Wieland v. Board of Regents of the Nevada System of Higher Education, No. 23-15339 (9th Cir. 2023)

On August 20, 2023, the AAUP and Nevada Faculty Alliance (NFA) filed a joint amicus brief in the United States Court of Appeals for the Ninth Circuit in support of Dr. Alice Wieland, a former assistant professor at the University of Nevada, Reno, who was denied tenure largely based on the tenure committee’s assessment of student evaluations of her teaching. Dr. Wieland filed a lawsuit against the university, alleging that her tenure denial violated Title VII of the Civil Rights Act of 1964’s prohibition on sex-based discrimination. The AAUP and NFA’s joint amicus brief argues that courts should take account of a large body of empirical evidence showing that gender bias often plays a role in student evaluations of teaching, and that, in certain circumstances, the use of student evaluations in connection with adverse employment actions such as tenure denial can constitute evidence supporting a claim of sex-based disparate treatment under Title VII.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. __, No. 20-1199 (June 29, 2023); and Students for Fair Admissions, Inc. v. Univ. of N.C., 600 U.S. __, No. 21-707 (June 29, 2023)

The Supreme Court recently held in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina that the race-conscious admissions policies employed by Harvard and University of North Carolina at Chapel Hill violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The decision runs contrary to over forty years of precedent and the arguments and cautions presented by the AAUP in an amicus brief filed jointly with thirty-nine other higher education associations.

Xi v. Haugen, No. 21-2798 (3d Cir. appeal filed Sept. 24, 2021)

On February 14, 2022, the AAUP joined an amicus brief challenging the federal government’s discriminatory targeting and surveillance of Asian American and Asian immigrant scientists and researchers—especially those of Chinese descent. The brief, authored by Asian Americans Advancing Justice-AAJC and Asian Americans Advancing Justice-Asian Law Caucus and joined by seventy other organizations, provides important context about the FBI and other federal agencies’ history of engaging in racially motivated investigations and prosecutions of Asian American scientists and academics and describes the immense harm this discriminatory treatment causes individuals and Asian American communities throughout the United States.

Pennsylvania v. DeVos, No. 1:20-cv-1468 (D.D.C. August 12, 2020); New York v. U.S. Dep't of Educ., 20-cv-4260, (S.D.N.Y. Aug. 9, 2020)

In two similar cases in which the AAUP joined amicus briefs, the district courts for the District of Columbia and for the Southern District of New York denied motions for preliminary injunctions seeking to delay the August 14, 2020, deadline for the implementation of Title IX regulations issued by the Trump administration. On May 19, 2020 the Trump administration issued new Title IX regulations, effective August 14, 2020, that significantly changed multiple aspects of Title IX as applied to higher education institutions, including significantly modifying the complaint investigation and hearing process, the definition of harassment, and the rights of the accused. In both cases, plaintiffs sued the administration claiming that the regulations should be invalidated, and they sought a preliminary injunction delaying the implementation of the regulations. Both courts denied the request for a preliminary injunction. The DC court explained that “although Plaintiffs have raised serious arguments about certain aspects of the Rule, they have not established a likelihood of success on their claims, nor have they established that they are likely to suffer substantial irreparable harm pending further litigation.” The courts’ decisions are not a final ruling on the underlying claims that the regulations should be invalidated, and those claims will continue to be litigated.

Freyd v. University of Oregon, No. 19-35428 (9th Cir. March 15, 2021)

On March 15, 2021, in a case in which the AAUP filed an amicus brief, the Ninth Circuit Court of Appeals ruled in favor of Jennifer Freyd, finding that she had alleged sufficient facts to proceed with a suit against the University of Oregon for pay discrimination based on significant pay disparities with male faculty members. The lower court had dismissed the suit based, in part, on findings that Freyd and her male colleagues did not perform equal work, and that any disparate impact on women was justified. The AAUP’s amicus brief provides an overview of gender-based wage discrimination in academia, explains that the common core of faculty job duties of teaching, research, and service are comparable, and explains that the pay differentials were not justified. The Court of Appeals reversed and remanded the case for trial, finding that the jobs of the relevant female and male faculty could be found “comparable” for legal purposes, that the retention raises resulted in a disparate impact on women, and that the university could have avoided the disparate impact by revisiting the pay of comparable faculty when the retention raises were given.

Bostock v. Clayton County, Georgia, et al.; R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, et al.; Altitude Express, Inc., et al. v. Zarda, Nos. 17-1618 (U.S. Jun. 15, 2020)

On June 15, 2020, in a case in which the AAUP joined an amicus brief, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on race, sex, religion, or national origin (“Title VII”) protects gay and transgender workers. The court held that because sexual orientation and gender identity cannot be explained as traits that someone has without referring to the sex of the person, discriminating based on those traits constituted discrimination “because of sex,” which is prohibited by Title VII. Thus, in affirming that Title VII’s broad scope, the Supreme Court extended protection of a powerful federal anti-discrimination law to those individuals who identify as lesbian, gay, bisexual, or whose gender identity differs from their sex assigned at birth (“LGBTQ”).

Buchanan v. Alexander, No. 18-30148 (5th Cir. March 22, 2019)

On March 22, 2019, the Fifth Circuit issued a decision finding that professor Teresa Buchanan’s termination for her classroom use of profanity and discussion of sex did not violate her First Amendment right to freedom of speech. While the court acknowledged that certain classroom speech is protected by the First Amendment, the court held that Buchanan’s speech was not protected as it did not serve an academic purpose.

Nassar v. University of Texas Southwestern Medical Center, 570 U.S. ____, 133 S. Ct. 2517 (2013).

In this case the Supreme Court limited the standard of proof in retaliation cases under Title VII (the nation’s primary anti-discrimination law) to the narrower “but for” causation standard.  While this ruling benefits employers and was contrary to the position argued by the AAUP in an amicus brief it is a relatively modest change in the burden of proof in such cases.

Lewis v. City of Chicago, 130 S. Ct. 2191 (2010)

The petitioners, unsuccessful applicants for firefighter positions, filed suit alleging that the City of Chicago’s practice of selecting only applicants who scored 89 or above on a written examination had a disparate impact on African-Americans in violation of Title VII of the Civil Rights Act of 1964. 

Crawford v. Metropolitan Government of Nashville and Davidson County, 555 U.S. 271 (2009)

Petitioner Vicky Crawford reported that her manager made sexually explicit remarks and gestures towards her; she was later terminated. At issue was whether Title VII protections against retaliation extended to an employee who spoke out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation.

Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009)

The petitioners alleged an inadequate response by an elementary school to student-on-student sexual harassment, raising both Section 1983 and Title IX claims.  The United States Supreme Court  determined whether a student who brings a lawsuit for sexual harassment under Title IX can also bring a constitutional claim for denial of equal protection under the federal statute 42 U.S.C. § 1983 

Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008)

Petitioner Anup Engquist, a former employee of the Oregon Department of Agriculture, angered her supervisor by reporting his abusive behavior to superiors.  The supervisor retaliated by arranging a restructure within the Department that resulted in Engquist’s discharge.

Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008)

Former employees sued Knolls Atomic Power Laboratory, alleging that the employer's method of reducing its workforce disparately impacted the employees based on their ages. The employer had its managers rate the employees based on performance, flexibility, and critical skills, with the statistically improbable result that 30 of the 31 employees who were laid off were at least 40 years of age.  

Smith v. City of Jackson, 544 U.S. 228 (2005)

A group of older police officers, filed suit under the Age Discrimination in Employment Act("ADEA")  claiming that they were adversely affected by a pay raise because of their age. The issue before the Court was whether employees can sue employers under the ADEA for actions or policies that have a disparate impact on employees over the age of 40.

Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003)

This case raises the legal issue of whether states are immune under the Eleventh Amendment from suits by individuals for monetary damages under the "family leave" provisions of the Family and Medical Leave Act, which allows employees to take up to 12 weeks of unpaid leave to care for a sick family member.

Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)

Here, the U.S. Supreme Court addressed whether the "sovereign immunity" clause of the Eleventh Amendment prohibits public employees, including faculty members, from suing public institutions, including colleges and universities, under the Americans with Disabilities Act (ADA)

Adams v. Florida Power Corporation, 255 F.3d 1322 (11th Cir. 2001)

Former employees of a utility company challenged a corporate reorganization in which more than 70 percent of the employees terminated were at least 40 years old. This case addressed whether the disparate impact method can be applied an age discrimination case under the ADEA.

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)

Consolidating three cases, the U.S. Supreme Court addressed whether the "sovereign immunity" clause of the Eleventh Amendment prohibits public employees, including faculty members, from suing public institutions, including colleges and universities, under the Age Discrimination in Employment Act (ADEA) for damages .

Anderson v. State University of New York at New Paltz, 169 F.3d 117 (2d Cir. 1999 )

Dr. Janice Anderson sued the State University of New York alleging a number of claims, including violation of the Equal Pay Act and Title VII.