Three recent items caught my eye over the past several weeks involving colleges and universities. One involved Title IX, one involved pay discrimination and one involves the potential unionization of graduate student assistants.
Florida State University recently agreed to pay Erica Kinsman, who accused Jameis Winston of rape, $950,000 to settle her Title IX lawsuit according to USA TODAY: “FSU agreed to pay Kinsman $950,000 – an amount that includes attorney's fees – as well as make a five-year commitment to awareness, prevention and training programs. The lump sum is the largest settlement for Title IX claims regarding indifference to a student's reported sexual assault.” FSU's President denied liability, stating that the settlement was entered into to avoid additional litigation expenses. In her lawsuit, Kinsman alleged that FSU was “deliberately indifferent” to her report of the alleged rape, and that FSU's response was “clearly unreasonable”.
In Knoxville, the University of Tennessee has agreed to pay at least $1,050,000 to three former female employees in the athletic department who alleged they were paid less than men at the school. The Knoxville News Sentinel reported that Jenny Moshak, the former associate director of sports medicine, and two former Lady Vols strength coaches, Heather Mason and Colin Schlosser, would receive a total of $750,000, plus attorneys' fees to be determined by the court to be no less than $300,000 and no more than $475,000. In filing internal pay discrimination complaints, the three alleged that they were paid less than their male counterparts or to those who were associated with men's teams “despite performing similar tasks”. As with Florida State, the settlement documents contained language that UT was not admitting any liability and the settlement was made “in compromise of disputed claims.” UT issued a statement that the “University believed that settling this matter at this time was in the best long-term interest of the university. The University unequivocally denies that any of the three former employees suffered any discrimination or retaliation. The settlement is not an admission of liability or any wrongdoing by the University.”
Practice pointers. Colleges and Universities, like any other employer, must comply with various state and federal laws that apply to the workplace concerning discrimination, equal pay and retaliation. Title IX imposes further obligations that must be complied with. According to the USA Today story, FSU admitted that both senior athletics director Monk Bonasorte and football coach Jimbo Fisher were aware of the rape allegation a month after Kinsman first reported the incident to police, but neither one notified the Title IX coordinator or the Office of Student Rights and Responsibilities. Fisher claimed in his deposition that he was not aware of FSU's sexual battery reporting policy at the time of the incident. This would indicate a lack of training and education of all employees as to the policies and procedures involving Title IX reporting requirements.
The NLRB, on January 13, 2016, requested that interested parties address the Board's current standard on whether graduate student assistants at private universities are employees as defined by the National Labor Relations Act. The NLRB is re-considering the standard it set in 2004 in the Brown University case, which held that graduate student assistants were not employees because they “have a predominately academic, rather than economic, relationship with their school.” In the pending Columbia University matter, the graduate student assistants are seeking to be represented by the Graduate Workers of Columbia-GWC, UAW union.
Practice pointer. I would not be surprised to see the NLRB reverse the 14 year old Brown University decision, and find that graduate assistant students can, in fact, unionize. I will keep you posted in a future blog when the NLRB issues its decision, which will likely be appealed to the courts.