Chapter 4 discusses legal issues associated with employment. These topics include contracts, collective bargaining, liability, discrimination, and affirmative action. There were many questions I had regarding this chapter, so please feel free to answer only those you are interested in for a response. I have also opened the blog for open discussion.
Discussion Questions
1. The chapter discussed the importance of employers providing clear, objective policies and employees using adequate communication skills regarding hiring practices and sexual harassment. What do view as positives and negatives of your institution's policies and how can your employees become more effective communicators to protect themselves from liability concerns?
2. What are your thoughts regarding collective bargaining and antidiscrimination? Do you feel more weight should be given to collective bargaining or to individual rights as in the Robert Roesser case?
3. I was very interested in the notion of "state-created dangers" and its reference specifically to the Texas A&M Bonfire case. Do you think institutions can contribute to the increased risk of students? How does this conflict with an institution's duty to protect and duty to warn?
4. How can the courts make determinations between salary discrimination and performance evaluation?
5. Do you think the text has a legitimate argument that affirmative action can possibly lead to "reverse discrimination"? Do you feel the two cases associated with this argument have validity?
I'd like to chime in on an issue with the employment law section. I find, after working in higher ed for a number of years that many times jobs that are advertised are already, in truth, promised to someone. I wonder sometimes how many lawsuits could occur due to this fact since its not really fair. I know at institutions I have been a part of, it is sometimes the running joke that there is no need to apply for certain position because you know someone the administration knows is going to get it. I was a part of an institution that fired a person and she sued and won the case. She was awarded back pay, vacation days, damages etc. and awarded her position back...she is still there today and it cost the college a LOT of money....so, as you can imagine, they are very squeamish about "firing" someone. Employment issues are so tricky!
....just one more point about my previous post...the "promised positions" includes times that I have been on hiring commmittees which are supposed to make the process fair but despite committee input, many times the ultimate decision is sent to the next higher level and can be overruled by the administration. I wonder how that would hold up in court or that if the college POLICY is that the final hiring decision is made by the administration, which has been the case in most places of higher ed I have worked, courts would find that since the policy in place the hiring practice was "fair"?
I hope that you don't mind, but I would like to comment on an issue that you did not ask a question about - age discrimination.
First, let me say that I was SHOCKED to learn that the Age Discrimination in Employment Act prohibits age discrimination only with respect to persons who are at least forty years old. This was quite eye opening for me - especially since I just had my 35th birthday. I certainly don't feel "old" and now that I am approaching the "forty years old" mark, do I have age discrimination to worry about? I wonder was the age always forty or was it originally older and then amended?
Second - I realize that I might get "beat up" on this one - but I do believe that in certain positions, that retirement should be required (age 70 is good). According to the text, as of January 1, 1994, mandatory retirement for most employees became unlawful. Let's look at this a bit.
Police officers and firefighters - are they still able to perform these jobs adequately at the age of 70? Maybe. Physically and mentally they may not be able to adequately perform these high-risk, high-stress, physically demanding jobs. What about professors? At age 70, are these professors still cutting edge with respect to their discipline, teaching, and technology? Maybe. Please understand that I am not being critical in any way, I just feel that sometimes at a certain point in life - it might be time to move on. With that said, I do believe that these individuals would make GREAT volunteer deputies and firefighters and adjunct instructors. Just maybe not on a full-time basis.
I would like to address Benet's question #3 about state-created danger, which also intrigued me. And I will disclose a personal interest in this topic because I was the Advisor to a student service trip to Costa Rica in 2009 when one of our students drowned in a rip tide at the beach where our service experience was located. Of course, we were aware of the potential for rip currents and discussed the potential dangers with our students prior to going and on location at the beach. So I have obviously thought at great length about the duty to warn and protect. When I look at the test described on page 132 (did state actors use their authority to create or increase a risk of danger to the student by making him more vulnerable to injury and thus depriving the student of a liberty interest in personal security?), I feel more assured of us not having engaged in state-created danger. We diligently warned students about the risks, and swimming was not part of the experience we designed for students - our service was strictly on the beach. We were on a break when the incident occurred and a small group of students chose to get into the water, which they had a right to do. The test in the A&M case talks about the state increasing the danger to the student and acting with deliberate indifference to that danger. Again, in our situation, we did not create the danger - might have been different if part of our service plan was to be in the water. And we certainly were not indifferent to the danger, since we spoke at length about it to the students. I believe that institutions have a high duty to warn against anticipated dangers, but it would take quite a bit to demonstrate that its involvement in an incident "restrained the [student's] liberty rendering him/her unable to care for him/herself." And it helped me to have the book explain that this goes more to determine the institution's intent rather than its negligence.
While I see your point, making determinations about one's ability to teach effectively, based on age alone, seems like a slippery slope. I recently spent some time with a professor/scholar/activist who is the most intriguing, inspiring person I've met. While he's not yet seventy, he's certainly within a reasonable age of retirement by most standards. I'd listen to and learn from him all day long, if I could; and I'm certain his students feel the same way. Perhaps what some "more seasoned" faculty lack in innovation and technological finesse, they make up for in wisdom and experience...the stuff you and I can't just pick up.
No doubt, there are some crusty old coots who ought to spare their students some misery and retire; but, then again, there are many young professors who have no business in a classroom, either. Tough call...
Thank you all for particpating with wonderful discussion so far. With regards to the age discrimination discussion, do you all believe or concur with the text that the "burden of proof" lies with the the plaintiff since a majority of the evidence is circumstantial? Misty's example of police officers should be easy to prove if a person is unable to perform the physical level of activity associated with the job, but how would a 70 year old professor to use Jennifer's example be able to prove they were discrimated against?
Benet, these are great questions! I am not sure whether I agree or don't agree with whether the burden of proof should lie with the plaintiff. The law is the law and historically, the individual challenging the law has typically had the burden of proof. Of course, this is different in criminal cases. However, in most civil cases, the plaintiff has the burden and there are times when the burden of proof shifts back and forth between the parties.
The Age Discrimination Act of 1967 doesn't solely apply to hiring or not hiring an individual due to their age. My interpretation of the law includes discrimination as it relates to any term, condition, or privilege of employment (i.e., hiring, firing, fringe benefits, promotions, etc.). As such, a 70 year old professor could suffer discrimination as it relates to denial of benefits or retirement packages,etc.. In addition, in an attempt to broaden our perspective of age discrimination, discrimination also includes harrassment. When the work environment becomes hostile or severly offensive, or when it results in an adverse employment situation, then discrimination has occurred. I have seen individuals work for corporations/governmental agencies for 30 years and suddenly endure undue harrassment. Typically, this is because the employer needs to incorporate layoffs due to budget constraints. Unfortunately, they believe the most efficient way is to harrass someone so they will eventually quit. This is essentially age discrimination. Thus, to come full circle, a university/college could practice age discrimination in many forms, even for a 70 year old professor.
Timely piece in light of discussion (from Insidehighered.com, 6/22/10)
EEOC and Community College Settle Age Bias Suit
The Community College of Baltimore County has agreed to pay $50,000 to settle an age discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission, as well as a retaliation lawsuit filed by an employee of the college, the EEOC announced Monday. The agency's announcement asserted that it had sued after the two-year institution declined to hire a clerk as an English as a second language instructor, citing her age (60). In addition to the financial payment, the settlement bars the college from "further engaging in any employment practice which discriminates on the basis of age, including failing to hire or promote applicants or employees based on age," the EEOC said. College officials did not respond to requests for comment.
In response to question #1, adequate employee training is crucial to anyone participating on any search committee. In my personal experience, I have seen more “lower level” positions being filled through search committees in order to get better representation from various stakeholders throughout the institution. Since there are more committees being used, more people are involved in the process that may not routinely serve in this role (or only serve occasionally). The risk to the institution is much greater in regards to search committees (and employment issues in general) vs. the normal day to day operations.
Specific, clear, and mandatory policies and training should be required for those who are active members of a search committee. Mandatory training ensures consistency throughout the process by all involved regardless of their background or past experiences. On the first search committee that I served on, training was required before our first meeting. I was given a detailed packet of information. I will admit there were more rules and regulations than I realized. Even if I was asked to participate in an active search today, I would attend training again because it has been several years since I served on one.
In regards to the age discrimination comment by Misty, forget 70, Google thinks 40 is too old…
The Roesser case (EEOC v. University of Detroit) is rather interesting. Title VII requires both companies and unions to attempt to reasonably accommodate employees’ sincerely held religious beliefs and forbids discrimination against them. That obligation to accommodate is also extended to include payment of required union fees because it is held that no employee should be mandated to fund an entity or institution that engages in activities that oppose their religious convictions. I found it interesting that the court would conclude that the employer could satisfy that obligation by suggesting an accommodation which only addressed one aspect of Dr. Roesser’s conflict and ignored the fact that such a solution would still require him to compromise a key element of his religious beliefs; namely the forced association with an entity that supports a position that is in direct opposition to his religious beliefs.
It seems like there should have been additional consideration given in finding a solution that would address all of the concerns and satisfy all parties. Even if the union fees were prorated to extract that portion which supports the entities that have taken positions that Dr. Roesser finds objectionable according to his religious beliefs, there is still the issue of association with such entities. Couldn’t Dr. Roesser’s union fees be wholly directed to another entity or union that doesn’t support the issue he objects to yet still be directed to an educational union; say, a local union as opposed to the state or national unions?
As my knowledge of educational law is minimal, I also wonder what new issues such a solution may create. Would Dr. Roesser still be a member of the union? Would he still be entitled to the benefits of membership in the union if his fees were being directed elsewhere? Would this set a precedent for others who had various objections to other associations the union might have?
While I agree with the idea of more weight being given to individual rights than collective bargaining, I honestly don’t have a good idea of just how complicated or problematic a situation like this could become so I’m really having a hard time deciding whether I think more weight should be given to collective bargaining or individual rights.
Jennifer S – I’m still laughing about your “crusty old coots” comment! Unfortunately, I think we’ve all had to suffer through courses where the professor was on autopilot; teaching from index cards, distributing fuzzy reprints of outdated articles, and showing videos from the 1970s (think big hair, women shown only as secretaries, and men in leisure suits) as contemporary instructional tools. Nothing turns off students faster than an instructor who has lodged themselves in the past who can’t or won’t discuss things that may be new or current because that would require them to update their own skills or knowledge base. But, you make a good point—many younger instructors don’t belong in the classroom either. You're right, in education it shouldn’t be a matter of age. As Misty suggests, it’s more a matter of ability. Even though professors don’t have the same physical demands as firefighters or police officers, they still should have the ability to stay current, update their skill sets and provide a quality education to the students who have enrolled in their courses. Unfortunately, due to tenure, there doesn’t seem to be much anyone can do about that...
Having worked at many different higher ed settings, I've noticed that membership in collective bargaining units is not always voluntary. Several places will deduct dues whether you are a member or not, which seems unfair. Why should you have to go to the extent of objecting on religious/moral beliefs as in the Roesser case? What if you simply object? I have found that sometimes people that do not want to pay into the collective bargaining unit (e.g. as adjunct instructors)but have to, aren't covered by all the gains of the unit (pay increases). Doesn't seem fair...
The concept of collective bargaining and antidsicrimnination should be considered all at once because as the reading suggests, there is always the chance that there will be a problem with an individual's rights with respect to the rights of the whole during the collective bargaining process.
This comment has been removed by the author.
ReplyDeleteChapter 4 discusses legal issues associated with employment. These topics include contracts, collective bargaining, liability, discrimination, and affirmative action. There were many questions I had regarding this chapter, so please feel free to answer only those you are interested in for a response. I have also opened the blog for open discussion.
ReplyDeleteDiscussion Questions
1. The chapter discussed the importance of employers providing clear, objective policies and employees using adequate communication skills regarding hiring practices and sexual harassment. What do view as positives and negatives of your institution's policies and how can your employees become more effective communicators to protect themselves from liability concerns?
2. What are your thoughts regarding collective bargaining and antidiscrimination? Do you feel more weight should be given to collective bargaining or to individual rights as in the Robert Roesser case?
3. I was very interested in the notion of "state-created dangers" and its reference specifically to the Texas A&M Bonfire case. Do you think institutions can contribute to the increased risk of students? How does this conflict with an institution's duty to protect and duty to warn?
4. How can the courts make determinations between salary discrimination and performance evaluation?
5. Do you think the text has a legitimate argument that affirmative action can possibly lead to "reverse discrimination"? Do you feel the two cases associated with this argument have validity?
I'd like to chime in on an issue with the employment law section. I find, after working in higher ed for a number of years that many times jobs that are advertised are already, in truth, promised to someone. I wonder sometimes how many lawsuits could occur due to this fact since its not really fair. I know at institutions I have been a part of, it is sometimes the running joke that there is no need to apply for certain position because you know someone the administration knows is going to get it. I was a part of an institution that fired a person and she sued and won the case. She was awarded back pay, vacation days, damages etc. and awarded her position back...she is still there today and it cost the college a LOT of money....so, as you can imagine, they are very squeamish about "firing" someone. Employment issues are so tricky!
ReplyDelete....just one more point about my previous post...the "promised positions" includes times that I have been on hiring commmittees which are supposed to make the process fair but despite committee input, many times the ultimate decision is sent to the next higher level and can be overruled by the administration. I wonder how that would hold up in court or that if the college POLICY is that the final hiring decision is made by the administration, which has been the case in most places of higher ed I have worked, courts would find that since the policy in place the hiring practice was "fair"?
ReplyDeleteBenet,
ReplyDeleteI hope that you don't mind, but I would like to comment on an issue that you did not ask a question about - age discrimination.
First, let me say that I was SHOCKED to learn that the Age Discrimination in Employment Act prohibits age discrimination only with respect to persons who are at least forty years old. This was quite eye opening for me - especially since I just had my 35th birthday. I certainly don't feel "old" and now that I am approaching the "forty years old" mark, do I have age discrimination to worry about? I wonder was the age always forty or was it originally older and then amended?
Second - I realize that I might get "beat up" on this one - but I do believe that in certain positions, that retirement should be required (age 70 is good). According to the text, as of January 1, 1994, mandatory retirement for most employees became unlawful. Let's look at this a bit.
Police officers and firefighters - are they still able to perform these jobs adequately at the age of 70? Maybe. Physically and mentally they may not be able to adequately perform these high-risk, high-stress, physically demanding jobs. What about professors? At age 70, are these professors still cutting edge with respect to their discipline, teaching, and technology? Maybe. Please understand that I am not being critical in any way, I just feel that sometimes at a certain point in life - it might be time to move on. With that said, I do believe that these individuals would make GREAT volunteer deputies and firefighters and adjunct instructors. Just maybe not on a full-time basis.
I would like to address Benet's question #3 about state-created danger, which also intrigued me. And I will disclose a personal interest in this topic because I was the Advisor to a student service trip to Costa Rica in 2009 when one of our students drowned in a rip tide at the beach where our service experience was located. Of course, we were aware of the potential for rip currents and discussed the potential dangers with our students prior to going and on location at the beach. So I have obviously thought at great length about the duty to warn and protect. When I look at the test described on page 132 (did state actors use their authority to create or increase a risk of danger to the student by making him more vulnerable to injury and thus depriving the student of a liberty interest in personal security?), I feel more assured of us not having engaged in state-created danger. We diligently warned students about the risks, and swimming was not part of the experience we designed for students - our service was strictly on the beach. We were on a break when the incident occurred and a small group of students chose to get into the water, which they had a right to do. The test in the A&M case talks about the state increasing the danger to the student and acting with deliberate indifference to that danger. Again, in our situation, we did not create the danger - might have been different if part of our service plan was to be in the water. And we certainly were not indifferent to the danger, since we spoke at length about it to the students. I believe that institutions have a high duty to warn against anticipated dangers, but it would take quite a bit to demonstrate that its involvement in an incident "restrained the [student's] liberty rendering him/her unable to care for him/herself." And it helped me to have the book explain that this goes more to determine the institution's intent rather than its negligence.
ReplyDeleteMisty,
ReplyDeleteWhile I see your point, making determinations about one's ability to teach effectively, based on age alone, seems like a slippery slope. I recently spent some time with a professor/scholar/activist who is the most intriguing, inspiring person I've met. While he's not yet seventy, he's certainly within a reasonable age of retirement by most standards. I'd listen to and learn from him all day long, if I could; and I'm certain his students feel the same way. Perhaps what some "more seasoned" faculty lack in innovation and technological finesse, they make up for in wisdom and experience...the stuff you and I can't just pick up.
No doubt, there are some crusty old coots who ought to spare their students some misery and retire; but, then again, there are many young professors who have no business in a classroom, either. Tough call...
Thank you all for particpating with wonderful discussion so far. With regards to the age discrimination discussion, do you all believe or concur with the text that the "burden of proof" lies with the the plaintiff since a majority of the evidence is circumstantial? Misty's example of police officers should be easy to prove if a person is unable to perform the physical level of activity associated with the job, but how would a 70 year old professor to use Jennifer's example be able to prove they were discrimated against?
ReplyDeleteBenet, these are great questions! I am not sure whether I agree or don't agree with whether the burden of proof should lie with the plaintiff. The law is the law and historically, the individual challenging the law has typically had the burden of proof. Of course, this is different in criminal cases. However, in most civil cases, the plaintiff has the burden and there are times when the burden of proof shifts back and forth between the parties.
ReplyDeleteThe Age Discrimination Act of 1967 doesn't solely apply to hiring or not hiring an individual due to their age. My interpretation of the law includes discrimination as it relates to any term, condition, or privilege of employment (i.e., hiring, firing, fringe benefits, promotions, etc.). As such, a 70 year old professor could suffer discrimination as it relates to denial of benefits or retirement packages,etc.. In addition, in an attempt to broaden our perspective of age discrimination, discrimination also includes harrassment. When the work environment becomes hostile or severly offensive, or when it results in an adverse employment situation, then discrimination has occurred. I have seen individuals work for corporations/governmental agencies for 30 years and suddenly endure undue harrassment. Typically, this is because the employer needs to incorporate layoffs due to budget constraints. Unfortunately, they believe the most efficient way is to harrass someone so they will eventually quit. This is essentially age discrimination. Thus, to come full circle, a university/college could practice age discrimination in many forms, even for a 70 year old professor.
Timely piece in light of discussion (from Insidehighered.com, 6/22/10)
ReplyDeleteEEOC and Community College Settle Age Bias Suit
The Community College of Baltimore County has agreed to pay $50,000 to settle an age discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission, as well as a retaliation lawsuit filed by an employee of the college, the EEOC announced Monday. The agency's announcement asserted that it had sued after the two-year institution declined to hire a clerk as an English as a second language instructor, citing her age (60). In addition to the financial payment, the settlement bars the college from "further engaging in any employment practice which discriminates on the basis of age, including failing to hire or promote applicants or employees based on age," the EEOC said. College officials did not respond to requests for comment.
In response to question #1, adequate employee training is crucial to anyone participating on any search committee. In my personal experience, I have seen more “lower level” positions being filled through search committees in order to get better representation from various stakeholders throughout the institution. Since there are more committees being used, more people are involved in the process that may not routinely serve in this role (or only serve occasionally). The risk to the institution is much greater in regards to search committees (and employment issues in general) vs. the normal day to day operations.
ReplyDeleteSpecific, clear, and mandatory policies and training should be required for those who are active members of a search committee. Mandatory training ensures consistency throughout the process by all involved regardless of their background or past experiences. On the first search committee that I served on, training was required before our first meeting. I was given a detailed packet of information. I will admit there were more rules and regulations than I realized. Even if I was asked to participate in an active search today, I would attend training again because it has been several years since I served on one.
In regards to the age discrimination comment by Misty, forget 70, Google thinks 40 is too old…
http://www.zdnet.com/news/google-hit-with-age-discrimination-suit/137384
The Roesser case (EEOC v. University of Detroit) is rather interesting. Title VII requires both companies and unions to attempt to reasonably accommodate employees’ sincerely held religious beliefs and forbids discrimination against them. That obligation to accommodate is also extended to include payment of required union fees because it is held that no employee should be mandated to fund an entity or institution that engages in activities that oppose their religious convictions. I found it interesting that the court would conclude that the employer could satisfy that obligation by suggesting an accommodation which only addressed one aspect of Dr. Roesser’s conflict and ignored the fact that such a solution would still require him to compromise a key element of his religious beliefs; namely the forced association with an entity that supports a position that is in direct opposition to his religious beliefs.
ReplyDeleteIt seems like there should have been additional consideration given in finding a solution that would address all of the concerns and satisfy all parties. Even if the union fees were prorated to extract that portion which supports the entities that have taken positions that Dr. Roesser finds objectionable according to his religious beliefs, there is still the issue of association with such entities. Couldn’t Dr. Roesser’s union fees be wholly directed to another entity or union that doesn’t support the issue he objects to yet still be directed to an educational union; say, a local union as opposed to the state or national unions?
As my knowledge of educational law is minimal, I also wonder what new issues such a solution may create. Would Dr. Roesser still be a member of the union? Would he still be entitled to the benefits of membership in the union if his fees were being directed elsewhere? Would this set a precedent for others who had various objections to other associations the union might have?
While I agree with the idea of more weight being given to individual rights than collective bargaining, I honestly don’t have a good idea of just how complicated or problematic a situation like this could become so I’m really having a hard time deciding whether I think more weight should be given to collective bargaining or individual rights.
Jennifer S – I’m still laughing about your “crusty old coots” comment! Unfortunately, I think we’ve all had to suffer through courses where the professor was on autopilot; teaching from index cards, distributing fuzzy reprints of outdated articles, and showing videos from the 1970s (think big hair, women shown only as secretaries, and men in leisure suits) as contemporary instructional tools. Nothing turns off students faster than an instructor who has lodged themselves in the past who can’t or won’t discuss things that may be new or current because that would require them to update their own skills or knowledge base. But, you make a good point—many younger instructors don’t belong in the classroom either. You're right, in education it shouldn’t be a matter of age. As Misty suggests, it’s more a matter of ability. Even though professors don’t have the same physical demands as firefighters or police officers, they still should have the ability to stay current, update their skill sets and provide a quality education to the students who have enrolled in their courses. Unfortunately, due to tenure, there doesn’t seem to be much anyone can do about that...
ReplyDeleteHaving worked at many different higher ed settings, I've noticed that membership in collective bargaining units is not always voluntary. Several places will deduct dues whether you are a member or not, which seems unfair. Why should you have to go to the extent of objecting on religious/moral beliefs as in the Roesser case? What if you simply object? I have found that sometimes people that do not want to pay into the collective bargaining unit (e.g. as adjunct instructors)but have to, aren't covered by all the gains of the unit (pay increases). Doesn't seem fair...
ReplyDelete-Michelle Bell-
The concept of collective bargaining and antidsicrimnination should be considered all at once because as the reading suggests, there is always the chance that there will be a problem with an individual's rights with respect to the rights of the whole during the collective bargaining process.
ReplyDelete