Employment

Volume 5, Number 3 Summer 2002

Action
Practical advice on campus personnel issues from United Educators Reciprocal Risk Retention Group

When Do Attempts to Diversify Faculty The Difference Between

Become Reverse Discrimination? Faculty Hiring and
A university paid $400,000 to settle a Student Admissions
E ducational institutions seek faculty
diversity for many compelling rea-
sons. Faculty from different backgrounds
claim by a white visiting professor
who unsuccessfully applied three
How do the affirmative action cases

times for an open permanent position, at the flagship public universities in

offer varied perspectives and promote a
robust exchange of ideas. They serve as
role models to students and counter
stereotypes about who should be teach-
ing in certain fields. Unfortunately, insti-
tutions may run afoul of the law in their
attempts to diversify faculty. The results
can be expensive and disruptive litiga-
tion, as the following examples illustrate:
A California jury awarded $2.7
million to a lecturer who was denied
a tenure track position at his institu-
tion because the college dean refused
to consider white males in faculty
searches.
A Michigan jury awarded $1.55 mil-
lion to a part-time community college
instructor who applied twice for full-
time positions but lost out both times
to women with less experience.
A jury awarded $350,000 to a male
professor because his tenure bid was
handled less favorably than female
and foreign-born candidates.
A federal appellate court held that a
white male professor of Eastern
European descent was entitled to a
jury trial on allegations that a univer-
sity would not appoint him as director
of its Spanish language program.
but the institution interviewed only
minority candidates.
A Pennsylvania jury awarded $2.2
million to two white tenured profes-
sors because they were forced to
resign in retaliation for opposing the
hiring of minority faculty they
believed were unqualified.
The most common mistake is failing to
obtain the advice of legal counsel before
taking steps to diversify the faculty.
Often, faculty and administrators do what
they think is right, without checking
whether their actions pass muster under
the latest legal tests. Over the past 15
years, courts have significantly restricted
the measures employers can take to
diversify their workforce. Unfortunately,
good intentions and good faith do not
constitute a sound legal defense.
What You Can Do to
Diversify Faculty
Despite the difficult legal climate, insti-
tutions can take a number of measures to
help locate and hire minority and female
faculty in fields where they are under-
represented. Each institution needs to
decide its own risk tolerance for litiga-
continued on page 4
Michigan, Texas, Washington, and
Georgia affect faculty hiring? For
the most part, they have no signifi-
cant impact. Those cases involve
affirmative action in student admis-
sions. Federal courts sharply dis-
agree whether student diversity is a
compelling state interest that justi-
fies consideration of race in admis-
sions decisions. Most likely, the U.S.
Supreme Court will take up the
issue and resolve the conflicting
opinions from the lower courts. In
contrast, the law on the constitu-
tionality of race-based faculty hiring
is more sparse. Only a state court in
Nevada has held that diversity is a
compelling interest that justifies
consideration of race in faculty hir-
ing. No other federal or state court
has agreed with the Nevada deci-
sion. Consequently, educational
institutions outside Nevada stand
on shaky legal ground when taking
race into account in faculty selection.

Inside: From Select Counsel: Juror Attitudes in Harassment and Discrimination Suits .......page 2
UEs Recommended On-line Courses for Preventing Harassment.............................page 6
New Video Recommendation: Sexual Harassment for Education ...........................page 7
Have You Bookmarked the New UE Web Site? ..........................................................page 7
Short Takes.....................................................................................................................page 8
 Steven Gerber (left photo) is United Educators Select Counsel
for New Jersey and is a founding partner of Gerber & Samson,
LLC. Dan Gallipeau, Ph.D., (right photo) regularly assists in
FROM
defending educational institutions throughout the country.
SELECT He is president and co-founder of Dispute Dynamics Inc., a
trial consulting firm in Torrance, California that has advised
COUNSEL
attorneys in more than 3,000 cases. Steven is a member of
the National Association of College and University Attorneys,
and Dan is one of the few non-lawyers invited to speak at
the organizations 2002 annual conference.

Juror Attitudes in Harassment and Discrimination Suits

by Steven Gerber and Dan Gallipeau
B efore deciding whether to take a case
to trial, employers must consider the
attitudes of potential jurors. Employment
discrimination claims are among the
most difficult to assess and require
identification of the preconceptions and
natural biases that jurors bring to the
courtroom. Unfortunately, in most cases,
the employer is essentially guilty until
proven innocent. Jurors experiences lead
them to identify with the plaintiff/
employee. This personal experience also
guides jurors in organizing the informa-
tion presented at trial. Dispute Dynamics
Inc., which provides trial consulting for
litigation, researched the attitudes of
thousands of potential jurors in cases
involving educational institutions and
other entities. This article includes various
research questions put to potential jurors
and the findings on their responses.
In a dispute between an employee and
an employer, the average juror tends to
believe the:
Employee 88%
Employer 12%
Jurors Believe Discrimination
Is Common
Potential jurors tend to believe that dis-
crimination is common in the workplace,
and hence are predisposed to believe
unequal treatment occurred based on race,
sex, or other protected characteristics.
Many decision-makers promotion
decisions are influenced by an
employees age, sex or race.
Agree 69%
Disagree 31%
White and minority employees are
treated equally in the workplace.
Agree 11%
Disagree 89%
Men and women are treated equally in
the workplace.
Agree 10%
Disagree 90%
Jurors Focus on the Actions
of the Employer
In reviewing a claimants case, managers
and defense counsel often focus on the
plaintiff and his or her negative traits
a poor performing employee or slacker
who created extra work for colleagues;
a person who overreacted to criticism
or was not a team player. But the notion
that employers can win by focusing on
the plaintiffs weaknesses is false. In
fact, research demonstrates that jurors
do not have to like a plaintiff to find in
a plaintiffs favor. The overwhelming
majority of jurors who vote for the
plaintiff are, in fact, finding against the
employer rather than for the plaintiff.
This dynamic is a key to assessing risk.
Jurors will focus on the policies and
procedures of the employer with a great
deal of skepticism.
Most companies say they strictly enforce
their policies against discrimination or
harassment in the workplace, but they
really dont.
Agree 82%
Disagree 18%
Thus, having a policy is not enough.
A successful defense must incorporate
facts demonstrating how the employer
properly addressed the plaintiffs con-
cerns. If the plaintiff made one prior
accusation of workplace discrimination
or harassment, even years ago, a signifi-
cant minority of jurors will conclude that
the employer had notice of a problem.
Even a casual mention to an immediate
supervisor or lower level human resources
person, outside the workplace, is enough
The Importance of
Good Investigations
To counter the built-in biases of
jurors, employers must produce con-
vincing evidence that they conducted
a good-faith and thorough investiga-
tion of misconduct and engaged in
appropriate disciplinary measures. Be
prepared to respond to the following
nine questions that jurors repeatedly
ask about workplace investigations:
1. What is the training and experi-
ence of the investigator?
2. How promptly was the investiga-
tion conducted?
3. Was the plaintiff ever directly
asked if he/she was discriminated
against?
4. Was the plaintiff kept informed
during the investigation?
5. Were the investigators notes
destroyed?
6 . Did the incident involve physical
contact or was it only verbal?
7. Did the plaintiff ever say, Stop?
8. Did the plaintiff participate in or
initiate any improper acts?
9. Did the plaintiff follow internal
policies or union grievance proce-
dures before suing?

2 Employment Action
notice to the employer to satisfy many
jurors. Finally, in spite of whatever pleas
the victim makes about not wanting any-
thing done, the research demonstrates
that the employer must act. Failure to do
so creates the potential for disaster at trial.
Jurors Believe Harassment
Often Goes Unreported
Juror attitudes on sexual harassment
create a conundrum for employers.
On the one hand, most jurors believe that
sexual harassment in the workplace is
common. On the other hand, they believe
that harassment is not reported.
Sexual harassment is a common
occurrence in the workplace.
Agree 72%
Disagree 28%
Do women report sexual harassment to
their employers if it has occurred?
Yes 17%
No 83%
Many employers incorrectly believe that
if a woman did not complain about
sexual harassment, it is more likely that
her complaint lacks a factual basis. Most
jurors, however, do not agree. While the
courts have limited, to some extent, the
employers damage exposure if it can
establish that an employee failed to
complain internally when the employer
had a well-established and publicized
complaint mechanism and anti-sexual
harassment policy, most jurors will
forgive a plaintiff for a long delay in
reporting harassment or discrimination.
They may ascribe this to embarrassment
at being a victim, fear of job loss, or an
attempt to fit in with coworkers. On the
flip side, the more serious the allega-
tions, the less receptive most jurors are
to a long delay in reporting. Neverthless,
jurors want to see swift punishment if
harassment occurred.
Supervisors who sexually harass their
subordinates should be fired.
Agree 92%
Disagree 8%
Employment Action
Juror Attitudes Are Stacked
Against Institutions in
Tenure Disputes
Tenure litigation is one of the most
expensive, divisive, and time-consuming
risks that educational institutions face.
Despite the fact that colleges and univer-
sities are non-profit organizations that
engage in significant community service,
most jurors come into trial with a neutral
rather than favorable attitude toward
universities. In addition, more than a
third of prospective jurors believe that
a university should be more sensitive to
employee concerns than corporations
and that university personnel should be
held to a higher standard than their
corporate counterparts. Trials in tenure
denial cases present difficult challenges
for universities.
In a dispute between a university
professor and university, whom would
you tend to believe?
Professor 81%
University 19%
How well do you understand the term
academic tenure?
Understand
and can explain
to others 21%
Understand but
cant explain
it 45%
Do not under-
stand 34%
Above all else, the function of a profes-
sor is to teach students.
Agree or
Strongly
Agree 87%
Disagree or
Strongly
Disagree 2%
Neither 11%
These data show that jurors have little
understanding of the tenure process,
overwhelmingly believe that the most
important role of faculty is teaching, and
would tend to believe a professor over a
university by a 4 to 1 margin. In tenure
denial challenges, the data illustrate that
universities must educate juries about the
meaning of tenure; explain to juries the
relative weight of research and teaching
as promotion criteria; and overcome the
natural tendency of jurors to side with a
professor over the university.
Risk Management Measures
Educational instiutions can take numer-
ous steps to overcome the biases of
jurors and strengthen their cases should
employment disputes ever go to trial:
In assessing cases, look ahead and
evaluate jury attitudes early in the case
before deciding whether to invest
significant time and money in lengthy
litigation.
Train employees on harassment and
discrimination prevention. Since jurors
believe that harassment is common
and many employer policies are not
followed, your efforts to eradicate
harassment through training will show
that you take the issue seriously.
Dont promise confidentiality. Once
an institution learns of potential
wrongdoing, it has a legal obligation
to investigate. Assure complainants
that they are protected from retalia-
tion, that you will be discrete, and that
you will share information only with
people who need to know.
Keep complainants apprised of the
progress of investigations into work-
place misconduct.
Make sure that investigators are
well-trained, or consider hiring an
experienced outside investigator if
no one on campus is qualified to
investigate a situation.
Outline your tenure process in clear,
easy-to-understand language that will
educate a jury as to how and why your
institution makes its tenure decisions.
Focus on early intervention. Even with
the best defense attorneys and consul-
tants, jury trials are notoriously
unpredictable. The best risk manage-
ment practices resolve employment
disputes early and prevent them from
escalating into litigation that puts the
fate of your institution in the hands
of a jury.
3
When Do Attempts to Diversify Faculty Become Reverse Discrimination?
continued from page 1
tion. As a general rule, steps taken in the
beginning of the hiring process to pro-
mote diversity are lower risk than steps
taken during the actual selection and
ranking of candidates. The following are
some concrete actions:
Low-Risk Measures
Expanding the Applicant Pool
Enlarging the pool of applicants to
include candidates from a wide variety
of backgrounds entails little legal risk so
long as the actual hiring decision is made
according to race- and gender-neutral
criteria. Most courts recognize the
difference between inclusive affirmative
action, which seeks to increase the
number of candidates considered for a
position, and exclusive affirmative
action, which eliminates candidates
because of their race or gender.
Outreach in the Academic Community
Academic institutions should locate can-
didates who will contribute to diversity
and encourage them to apply.
Mail position announcements to groups
such as the Consortium for Women in
Science, Math and Engineering or the
Compact for Faculty Diversity.
Directly contact institutions that have
strong track records of producing minor-
ity or female academics in a particular
field and encourage them to nominate
candidates.
Earmark money to advertise in trade
publications that underrepresented candi-
dates are likely to read.
Review the Minority and Women
Doctoral Directory, which collects the
names and contact information of 4,500
employment candidates who have either
Low Risk
Outreach
Diverse selection committee
Expanding the pool
4 Employment Action
recently received or will soon receive a
doctoral or masters degrees. Empha-
sizing the personal touch, contact
prospects with phone calls or personal-
ized letters to signal your openness and
genuine interest in them.
Diverse Selection Committees
Many people unconsciously hire people
like themselves. A diverse selection com-
mittee can help filter out those biases
and ensure that candidates are evaluated
based on actual job qualifications.
Moderate-Risk Measures
Creating Positions Likely to Attract
Underrepresented Candidates
Some institutions may create positions in
fields such as African-American studies
on the theory that African-Americans are
more likely to be attracted to such an
opportunity. This measure is acceptable
so long as the institution does not leap to
the assumption that only an African-
American could hold such a position.
An institution must accept applicants of
all races and evaluate candidates qualifi-
cations irrespective of race.
Incentives for Departments to Hire
Minority or Female Candidates
The legality of departmental incentives
to hire minority candidates often depends
on how they are structured. For example,
a court upheld a program that gave a
department an extra faculty slot if it
hired a minority candidate. The court
reasoned that the institution did not
infringe on the rights of a similarly quali-
fied white candidate because the depart-
ment used its additional faculty slot to
hire the white candidate as well as the
minority candidate. In contrast, a court
struck down a program that provided
The Risk Spectrum
Moderate Risk
Outreach
Financial incentives for departments
Creating a position to lure a candi-
date of a specific race
additional financial resources to
departments hiring minority candidates,
reasoning that the prospect of additional
resources might induce decision-makers
to consider factors other than the qualifi-
cations of the candidates.
High-Risk Measures
Deciding in Advance to Recruit
a Candidate of a Particular Race
or Gender
One of the most expensive reverse dis-
crimination cases involved a philosophy
department that was entirely male and
decided it needed a female faculty
member. The faculty thought they were
doing the right thing, but the colleges
legal counsel found it virtually impossi-
ble to prove that the hiring process was
non-discriminatory. Eventually the col-
lege paid an unsuccessful male candidate
more than $100,000 to drop his case.
Giving a Plus or Extra Points
to Candidates of a Particular Race
or Gender
Recent cases suggest that even if two
candidates are equally qualified, it is not
legal to use race as a tiebreaker. For
example a federal appellate court held
that a school facing budget cutbacks
could not use racial diversity as the rea-
son for laying off a white teacher rather
than an equally qualified black teacher in
the same department.
Limiting Who Can Apply for a Position
An institution may specify qualifications
for a position but cannot limit who can
apply, even at the request of a donor
creating the position. For example, an
institution cannot require that a womens
studies position endowed by a prominent
feminist be filled by a woman, but it can
High Risk
Deciding to hire a particular type
of candidate
Using race or gender as a plus
factor in selection
Limiting who can apply
 lege president. The president soon
The Role of the Office of decided that the negative publicity,
Federal Contract Compliance Programs polarization within the department, and
risk of a significant adverse verdict
The Office of Federal Contract Compliance Programs (OFCCP) requires all employers were not worth continuing the litigation.
with federal government contracts in excess of $50,000 a year to develop affirma- Consequently, the institution settled with
tive action plans. OFCCP looks hard at whether employers make efforts to expand the visiting professor and paid him
the pool of applicants for positions in which women or minorities are underutilized $250,000 to drop his case.
relative to their availability in the workforce. However, OFCCP does not suggest that
employers consider race or gender in hiring decisions, and institutions may not rely Conclusion
on OFCCP requirements as a legal defense if they are sued for reverse discrimination.
The increasing legal restrictions on con-
sideration of race and gender in hiring
require that the professor be knowledge- candidate created the potential for signif- pose significant challenges for institu-
able in feminist theory and an activist in icant liability. As the litigation dragged tions seeking to diversify their faculty.
womens rights. on, faculty members gave contradictory Nevertheless, institutions can engage in a
testimony in depositions as to whether wide array of effective measures to pro-
A Typical Reverse the visiting professor or the successful mote faculty diversity. Institutions need
Discrimination Claim candidate was more qualified. The fac- to review their current initiatives, decide
Involving Faculty Hiring ulty became polarized over the issue. The on which measures to continue and
new professor felt like she was thrust which measures to add, and then coordi-
The following is a composite based on into a controversy she did not create and nate future diversification efforts with
several recent claims brought against openly started to question her decision to legal counsel to maximize effectiveness
United Educators members. come to the institution. The case became while minimizing the litigation risks.
The only tenured female faculty member national news, which distressed the col-
in a colleges engineering department left
the institution for a high-paying job in Additional Resources
private industry. She had been the first
woman in the engineering department, Diversifying the Faculty: A Guidebook for Search Committees, by Caroline
and her national prominence attracted Sotello Viernes Turner. The guidebook provides practical advice on conducting the
four additional female faculty. In turn, the search process, includes a checklist of best practices, and provides helpful listings
dynamic group of female faculty lured of institutions that produce large number of minority and female doctoral candi-
many top female engineering students. dates. Available from the Association of American Colleges & Universities,
www.aacu-edu.org/issues/diversity.cfm.
The Dean publicly promised to do what-
ever it took to bring a female engineer Minority and Women Doctoral Directory. This registry maintains up-to-date
of similar reputation to the department. information on employment candidates who have recently received, or are soon
Within days, he found a strong female to receive, a doctoral or masters degree. www.mwdd.com.
candidate. The colleges faculty hand- When Color-Blind is Color-Bland: Ensuring Faculty Diversity in Higher Edu-
book required that all tenured positions cation by Jonathan Alger, 10 Stanford Law and Policy Review 191 (Spring 1999).
be advertised and that departments form
a search committee. However, the Dean Selected Court Cases
bypassed normal procedures and invited
her to interview two weeks later. The Stern v. Trustees of Columbia University, 131 F.3d 305 (2d Cir. 1997) (a professor
interview went well, and the faculty alleging he was denied the directorship of a Spanish program because of his
voted to offer her a tenured position, national origin was entitled to a jury trial)
which she accepted. Taxman v. Board of Education of Township of Piscataway, 91 F.3d 1457 (3d Cir.
A male visiting professor sued, alleging 1996) (striking down consideration of race as a factor in deciding which of two
that he should have received the opportu- equally qualified teachers to lay off)
nity to interview for the open position University and Community College System of Nevada v. Farmer, 930 P.2d 730
but was excluded solely because of his (Nev. S. Ct. 1997) (upholding a plan that gave an extra faculty position to depart-
gender. The Dean wanted to fight the suit ments that hired a minority candidate)
and believed he had done nothing wrong.
Honadle v. University of Vermont, 56 F.Supp.2d 419 (D. Vt. 1999) (finding that finan-
He also believed that the recently hired
cial incentives to departments to hire minority candidates were unconstitutional)
female faculty member had better
qualifications than the visiting professor. Shuford v. Alabama State Board of Education, 897 F. Supp. 1535 (M.D.Ala. 1995)
The colleges attorney felt otherwise. (efforts to broaden the pool of qualified applicants for faculty positions are
She believed that bypassing the normal constitutional)
search process and interviewing only one

Employment Action 5
UEs Recommended On-line Courses for Preventing Harassment
O n-line courses for preventing harass-
ment offer an innovative way to
train employees. The courses can reach
people who could not attend in-person
training, are new employees, or just need
a refresher on harassment issues. On-line
courses may constitute your institutions
primary method of training or can serve
as one of multiple delivery mechanisms
for training materials. The principle
advantage of on-line training is conve-
nience. Trainers do not need to schedule
sessions. Employees need just a com-
puter, a modem, and motivation to com-
plete the course. Employees can choose
when they want to undergo training and,
if necessary, can stop the course and
resume at a more convenient time.
A second advantage of on-line training is
tracking. You can retain records on when
employees took the course and how long
they spent on it. Finally, on-line harass-
ment courses allow you to test whether
employees truly understand the material
presented through frequent quizzes. The
best courses not only test a users com-
prehension of the material presented but
also whether the user is able to apply the
lessons learned to hypothetical situations.
We reviewed more than 10 courses using
the following criteria:
Interactivity
Ability to customize and include your
institutions policy
Course design
Technological features
Price
We are pleased to recommend the three
courses below. All are available for free
previews, and we have negotiated special
prices for UE members.
Comply America/Worknett
This course tests a users understanding
of your institutions harassment policy.
Users first study the policy (which can
be incorporated into the on-line module).
Then users answer multiple-choice ques-
tions testing basic comprehension. Users
must keep answering until they select the
right answer. The course provides expla-
nations for why each answer is correct or
6 Employment Action
incorrect. After that, users watch stream-
ing video scenes depicting harassment,
retaliation, and an employee reporting
alleged harassment. The questions
following each scene test whether users
can apply the policy to the situation
presented. Some of the questions are
hypothetical and change the facts of the
scene to illustrate nuances of the policy.
Throughout the course, there is a strong
emphasis on reporting problems to the
appropriate supervisor or human
resources officer. At the end of the
course, users are asked if would like
more information or if they have experi-
enced harassment they would like to
report to human resources.
www.complyamerica.com
Contact: Kevin Ribble (214) 676-8662
Annual Pricing:
Up to 1500 users $7.00 per user
1501-2500 users $5.00 per user
2501-5000 users $4.00 per user
5000+ users $3.00 per user
Corpedia
Corpedias course provides a thorough
overview of workplace harassment based
on sex, race, religion, national origin,
ethnicity, age, and disability. The course
is narrated with slick graphics reinforc-
ing the content. In addition, the course is
close captioned, which makes it compli-
ant with the Americans with Disabilities
Act. Numerous actual cases illustrate
legal points. Multiple-choice questions
are interspersed throughout the program
to make the program interactive and
ensure that the user understands the
information presented. Although the
course does not use streaming video, it
asks questions about hypothetical situa-
tions to see if users are capable of apply-
ing the knowledge they have learned.
At the end of the course, users take a
14-question quiz. If they miss a question,
they must answer it again until they
select the correct answer.
www.corpedia.com
Contact: Ann-Catrine Lillqvist
(877) 629-8724 ext. 108
Annual Pricing:
11-49 users $38.00 per user
50-499 users $16.00 per user
500-1999 users $8.50 per user
2,000-4999 users $6.00 per user
5000+ users $4.50 per user
Midi Corporation
Midi offers a sophisticated on-line course
that depicts numerous real-life scenarios
with streaming video. After each scenario,
users are asked whether harassment
occurred, and if so, what the victim
should do. The course gives explanations
for why each selected answer is right or
wrong. One of the most innovative
aspects of the course involves investiga-
tions of two situations. Users first hear
from the accuser. They can ask the
accuser questions, who responds via
streaming video. Users then interview
the accusers manager and co-workers, as
well as the accused. After the interviews
are completed, users must determine
whether harassment occurred. The
combination of high-quality acting and
interactivity gives users in-depth insight
into the dynamics of harassment situa-
tions. The end of the course includes a
comprehensive quiz to test what users
have learned. Although the course was
originally developed for a large
aerospace company, most of the scenes
are applicable to an education work
environment.
www.midi.com
Contact: Bob Cicala (609) 924-4817
extension 138
Pricing for unlimited use:
Up to 3500 users $10,000 one-time fee
3500-5000 users $12,000 one-time fee
5000+ users $15,000 one-time fee
Unlike the other recommended courses,
Midi charges extra if the customer wants
Midi to host the course on its com-
puter system rather than installing the
course on the customers system.
New Video Recommendation: Sexual Harassment for Education
O nly occasionally does a commer-
cially produced video for sexual
harassment training apply well to the
campus environment. United Educators
is pleased to recommend Sexual
Harassment for Education, a video
developed by American Media,
Incorporated, one of the nations leading
producer of training materials. Filmed on
college campuses, the video presents ten
vignettes of students, faculty, and staff
interacting in realistic college situations.
The vignettes address common harass-
ment scenarios such as
Have You Bookmarked the New UE Web Site?
U sing member feedback, UE has
substantially revamped its web site.
The new site contains more information
and numerous features that make it eas-
ier to use and navigate including features
such as searches by keywords or phrases;
drop-down menus to search by topic;
and streamlined procedures for password
registration
What is the
Members Only Library?
The Members Only Library contains a
treasure trove of risk management
resources available only to UE members.
These include back issues of
Employment Action newsletters, mono-
graphs on liability topics, audio record-
ings of UEs recent bi-monthly telephone
roundtables, and advice on developing
training programs. All of the files in the
Members Only Library can be down-
loaded to your computer and emailed as
an attachment to others on your campus.
The following is a brief taste of some of
the contents:
Employment Action Special Issue:
Training and Resources to Prevent
Litigation (summer 2001)
Employment Action
Students harassing another student
A staff member harassing a student
Training Leaders Guide provides good
materials and advice for structuring a
workshop around the 15-minute video.
A faculty member harassing a student
Although the video is produced in both
A student harassing a faculty member student and administration versions, the
Harassment via email vignettes used in each version are almost
Dating situations identical.
Same-sex harassment Preview: Free
After each vignette, the video asks view- Cost: $295 per version
ers whether the conduct shown consti-
tutes sexual harassment. An attorney then Contact: Richardson Company
breaks down the action and explains Training Media;
whether or not it was illegal. The 1-800-488-0319
www.rctm.com
Intellectual Property and Cyberspace:
A Risk and Resource Guide for
Educational Institutions
highlighted portion of the last
sentence.
Fill out the short form and click the
Properly Documenting Employee submit button.
Disciplinary Actions, by UE Select
So go ahead and bookmark the new
Counsel Dan Wilczek, in Reason &
web site at www.ue.org and take advan-
Risk, Winter 2000
tage of all the resources it offers. If you
UE Roundtable Audio File: have any comments or suggestions
Managing A Campus Crisis in the regarding the web site, please email
Post September 11 Environment Jaye Isham, Manager of Communi-
cations, at jisham@ue.org or call him
How Do I Get A Password for at 301-215-6470.
the Members Only Library?
Obtaining a password
is easy, and anyone on
your campus can regis-
ter since we use email
addresses to verify UE
membership. Just fol-
low these steps:
From the home page
at www.ue.org, click
on the Members
Only Library but-
ton at the top left.
Read the two para-
graph description of
the library and then
click on the blue
7

Short Takes
Getting Faculty
to Training
Some campuses experience difficulty
convincing faculty to attend training ses-
sions on issues such as harassment and
discrimination. One educational institu-
tion found a very effective method. It
raffled off a graduate assistantship slot at
a faculty training session. The catch: fac-
ulty members had to be present to win.
Ignore this Decision
Do not change your Family and Medical
Leave Act (FMLA) procedures because
of the Supreme Courts decision in
Ragsdale v. Wolverine Worldwide. In
March, the Court held that an employer
was not required to provide an employee
additional sick leave, even thought it
failed to designate the employees 30
weeks of time off due to illness as count-
ing towards her FMLA leave. This deci-
sion is not a license to ignore your oblig-
ation to notify employees as soon as they
go on leave that the time could count
towards their 12-week FMLA entitle-
ment. If the employee can show he or she
was prejudiced by your failure to notify,
she may still be entitled to additional
FMLA leave. Furthermore, the
Department of Labor still retains the
right to sanction employers with penal-
ties or fines if they do not properly des-
ignate FMLA leave.
Supreme Court Eliminates
Punitive Damage Awards
Against Recipients of
Federal Funds
In a little noticed but very important
decision, the Supreme Court ruled that
individuals may not recover punitive
damages in suits brought under laws
prohibiting discrimination by entities
receiving federal funds. The case, Barnes
v. Gorman, involved a paraplegic who
was arrested outside a nightclub for
arguing with a bouncer. The plaintiff won
$1.2 million in punitive damages against
the police because he suffered injuries
resulting from transport in van that did
not accommodate his disability. The
Supreme Court threw out the punitive
damages award, but the importance of
the case extends far beyond disabilities
law. Educational institutions receiving
federal funds are subject to numerous
laws, such as Title IX, which prohibits
discrimination based on sex, and Title
VI, which prohibits discrimination
based on race, and Section 504 of the
Rehabilitation Act, which prohibits
discrimination based on disability.
Under the Barnes ruling, plaintiffs can
no longer recover punitive damages in
suits brought under those laws.
Supreme Court Limits
ADA Again
In a unanimous decision, the Supreme
Court held that Chevron Corporation
was not required to hire an oil refinery
worker whose chronic liver disease could
be exacerbated by chemicals commonly
used in the workplace. In doing so, the
Court upheld an EEOC regulation that
employers can refuse to hired individuals
who would pose a direct threat to the
health and safety of themselves or others
in the workplace. The case marked the
third time this year that the Supreme
Court has limited the reach of the
Americans with Disabilities Act in the
employment context. Watch for the fall
issue of Employment Action, which will
focus on disabilities in the workplace
and give you practical advice for
dealing with the rapidly changing law
in this area.

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President & CEO CFO & Vice President for
Finance and Administration
JOSEPH B. McCULLOUGH
Vice President for ANN H. FRANKE
Vice President for Education &
General Liability Claims
Risk Management
ROBB JONES
BRUCE P. BERNSTEIN
Vice President & General Counsel
Associate Vice President for
for Claims Management Business Development
LEE LLOYD D. FRANK VINIK, ESQ.
Chief Actuary & Risk Manager for
Vice President of Underwriting Educators Legal Liability

JAYE D. ISHAM
Manager of Communications
Employment Action is published quarterly by United Educators Reciprocal
Risk Retention Group The newsletter is distributed to Educators Legal
Liability policyholders. Questions regarding the content should be directed
to the editor, Frank Vinik, at fvinik@ue.org.

The material appearing in this publication is presented for informational

purposes only and should not be considered legal advice or used as such.