What​ is the role of labor unions in light of the sweeping Dept. of Education Title IX changes?

Labor Relations, title IX

There is a looming and unprecedented legal issue on the horizon for thousands of public colleges and universities nationwide. This issue represents the evolution and eventual collision of years of legal jurisprudence involving collective bargaining rights and the evidentiary standard of review during a Title IX sexual assault investigation.  

Simply put, in light of the sweeping Dept. of Education Title IX policy changes set to become law in 2019, should labor unions have a voice in which standard of review colleges choose?

Ostensibly, there might not appear to be a close or apparent relationship between Title IX and public institution collective bargaining agreements.  To be sure, Title IX involves in large part students’ gender equity and their safety from sexual harassment on a college campus.  Unionized public employees, on the other hand, employed on a college campus who may become victims of sexual harassment by a fellow employee or university student enjoys the expansive protections of Title VII, state laws, college policy and the provisions of their respective collective bargaining agreements.  However, if the accused is a union member, should the standard of review become an issue predetermined by collective bargaining?

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The impending Title IX changes give colleges and universities the right to choose the standard of review between preponderance of the evidence and clear and convincing evidence.  Yet, the question remains under the proposed Title IX changes: Is the Title IX standard of review a mandatory subject of bargaining?  Is the Title IX standard of review a term and condition of employment? In California, for example, the public employment statute reads “it is the purpose of this chapter to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations.”  See Cal. Gov’t Code § 3500

In Illinois, an employer’s refusal to negotiate over a mandatory subject of bargaining constitutes an unfair labor practice. Vill. of Oak Lawn v. Illinois Labor Relations Bd., State Panel, 2011 IL App (1st) 103417, ¶ 14, 964 N.E.2d 1132, 1136. Similarly, in Ohio, the public employment statute states “all matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement are subject to collective bargaining between the public employer and the exclusive representative ….”  See Ohio Codes 4117.08

While these matters will vary from state to state, the issue is set to become one of the most contentious concerns for colleges nationwide.

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Iowa College Becomes Battleground For Student Worker Unionization

constitution, Labor Relations

A faceoff between students and administrators at Grinnell College in Iowa could affect schools across the U.S., through a case that could prompt the National Labor Relations Board to reconsider whether student employees at private colleges and universities can form unions. To read the full article, click here…

Is there a link between Title IX, Campus Labor Unions and the Duty to Collectively Bargain Terms and Conditions of Employment?

Due Process, Equal Opportunity, human resources, Labor Relations, title IX, title VII

This vital question has not been examined fully by the courts with regard to the duty to bargain the terms and conditions of employment in light of the Title IX interim guidance set forth in September 2017.  As institutions now enjoy the right under the interim guidance to choose between preponderance of the evidence and the heightened clear and convincing evidence to determine a campus sexual assault violation, the question now turns to whether campus labor unions have a seat at the table when institutions make this decision.  Which standard of review is applicable if a unionized campus employee is alleged to have violated campus Title IX policy? Campus labor unions may, in fact, argue that agreed upon collective bargaining agreement controls (many of which require the clear and convincing evidence standard), while the campus administration may well rely upon the potentially lower standard (preponderance).  Thus, a term and condition of employment.  The following document analyzes this issue under the 2011 DCL, and remains heavily applicable and relevant to the upcoming 2018 Title IX Guidance. Title IX, Labor Unions and the Duty to Collectively Bargain.

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The Higher Ed. “Sham” Interview – A Title VII analysis of a common hiring scenario

Equal Opportunity, Labor Relations

While the unethical practice of conducting “sham” job interviews has been explored, considered and analyzed in the corporate setting and in sports, it has largely been ignored in higher education.  The “sham interview” of course being the practice of conducting a bad faith job interview where the unwitting candidate has no actual chance at being hired for the position, but the interview is offered despite this fact in order to satisy a diversity-driven quota, rule or requirement that the employer must meet.

To be sure, this practice is unethical and clearly erodes confidence in the hiring process.  But is it a violation of the law and illegal under Title VII?  This question presents uncharted ground in Title VII legal analysis.  Title VII, the federal law that prohibits most workplace harassment and discrimination, covers all private employers, state and local governments, and educational institutions with 15 or more employees.  In addition to prohibiting discrimination against workers because of race, color, national origin, religion, and sex, those protections have been extended to include barring against discrimination on the basis of pregnancy, sex stereotyping, and sexual harassment of employees.

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In higher education, the sham interview is especially egregious because of the scarcity of resources of many institutions and the legal and PR fallout that may occur afterwards.  The practice may be found to be illegal not necessarily because of the act itself, but because the person who is ultimately hired for the position may not be as qualified or experienced as those who were given the “sham” interview.  If evidence reveals that the sham interview candidates were treated in this way due to race, color, national origin, etc., then a claim would be actionable under Title VII.

Best practice dictates that higher education employers avoid “sham” interviews and only interview candidates who are qualified and who have an actual good-faith opportunity to be hired for the postion.  See 2004 WL 2075159 for the financial impact in higher education for conducting sham interviews and a subsequent Title VII claim.