Department of Education Issues Proposed Rule on Title IX

Today, the U.S. Department of Education (ED) issued a proposed rule changing how colleges and universities must handle allegations of sexual assault and harassment under Title IX of the Education Amendments of 1972. This long-awaited proposal is the first action by the Education Department since last September, when it rescinded guidance issued by the Obama administration in 2011.

Education Secretary Betsy DeVos criticized the Obama guidance as “overly prescriptive and lacking due process for the accused.” At the same time it rescinded the Obama guidance, the ED issued an interim question-and-answer document for schools on how to investigate and adjudicate allegations of campus sexual misconduct under federal law.

While we are still reviewing proposed changes, the ED has provided summary information on the proposal in its press releasefact sheet and background and summary document. The public has 60 days to comment on the proposal.

In the next few weeks, we will provide more information on how you may comment and will seek your input on the proposal via a survey to help inform CUPA-HR’s comments.

For further background information, view the archived webinar Facing the Challenges of DOE’s Recent Title IX “Interim Guidance.”

Have you heard about CUPA-HR Boot Camp?

There may not be such a thing as a free lunch, but if you’re a CUPA-HR member there is a free course. Designed especially for early career HR professionals or those who may be new to HR in a higher education setting, this 5.5-hour course offers the basic knowledge you need to be successful in any HR role in higher education.

When you take the course, you’ll:

  • Work through scenarios to become familiar with FLSA job classification in higher education, including classification of support staff and faculty.
  • Find out how you can avoid employment and labor law mistakes related to Title IX and other laws.
  • Become acquainted with the sources of funding that drive an institution’s budget.
  • Explore issues related to crisis management and workplace violence policies on a college campus and learn how the higher ed environment differs from other industries and sectors.
  • Learn which discrimination laws can and cannot be applied to expatriate workers, plus other considerations for foreign nationals recruited and employed by colleges and universities

View a full list of modules and topics.

National Science Foundation Issues New Harassment Reporting Requirement

NSF said it made the changes to “ensure the research and learning environments it supports are free from harassment.” Under the new requirement, institutions that have been awarded grants (nearly 2,000 colleges and universities) must notify NSF within 10 days of any findings or determinations that any NSF-funded principal or co-principal investigator (PI) violated the law or the institution’s policies with respect to harassment, including sexual harassment or assault, or if the institution has taken administrative actions or sanctions against the PI or co-PI because of alleged harassment. This includes reporting interim measures when a PI or co-PI is placed on administrative leave pending an investigation. NSF requires the awardee organizations to report via a secure online portal.

NSF originally issued proposed changes on February 8 with Important Notice No. 144, along with a request for comment. CUPA-HR, joined the American Council on Education and five other higher ed associations, in filing comments on May 4. In our comments, we discussed our shared goal of eliminating sexual harassment and sexual assault from the scientific and education workplace; applauded NSF’s efforts to institute reporting requirements to enable receipt of timely and pertinent information pertaining to PIs and co-PIs at awardee institutions; and offered several questions, comments and recommendations to help ensure that the new policy was narrowly tailored to remedy documented discrimination in the workplace and carefully drafted to minimize burdens, confusion and unintended consequences.

For more information, NSF has also released a Q&A document. 

2017-18 CUPA-HR Chapter Successes & Updates

We are extremely impressed with the work accomplished last year by our Western Region CUPA-HR chapter boards and volunteers. InterMountain West, Washington, Utah, Rocky Mountain are just a few of our chapters that challenged themselves to do more and offer unique opportunities for their members in 2017-18. The Southern California chapter remained strong and continued to produce three one day conferences last year. They also completed a member survey to ensure they were meeting the needs of their constituents. By reaching out in this way they were able to secure a list of host schools for the upcoming year. The Northern and Central California chapter offered a full day conference at Oracle’s Redwood City Campus and utilized many of Oracle’s learning and development offerings. And a little bit farther north, the Oregon chapter celebrated its 10 year anniversary with a two day event held on the Oregon coast!

Please see 2017-18 CUPA-HR Chapter Successes & Updates for more details.

DOL Issues Opinion Letter on Wellness Activities

On August 28, the Department of Labor (DOL)’s Wage and Hour Division (WHD) issued six new opinion letters to address compliance issues under both the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). As WHD states, “an opinion letter is an official, written opinion by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter.”

The August announcement builds upon DOL’s June 2017 statement that it would reinstate the issuance of opinion letters — a longstanding practice of DOL before it was eliminated during the Obama administration and replaced with broader “Administrator Interpretations”— and the January 2018 reissuance of 17 opinion letters drafted at the end of the Bush administration yet withdrawn by the Obama administration before they could be mailed.

While the recent batch of newly released opinion letters address a variety of issues, one of the letters answers an individual’s request for WHD to opine on whether the FLSA “requires compensation for the time an employee spends voluntarily participating in certain wellness activities, biometric screenings and benefits fairs.” The fact pattern set forth in the letter is as follows:

The employer allows (does not require as it is completely voluntary) its employees to participate in biometric screenings which test such things like an employee’s cholesterol level, blood pressure and nicotine usage, as the participation in such screening could reduce the individual employee’s insurance deductibles. The employer also allows employees to participate in wellness activities that may reduce an employee’s insurance premiums. These activities can include attending health classes, participating in Weight Watchers and using the employer-provided gym; however [these activities] are completely voluntary and do not relate to the employee’s job. Finally, the employer also allows employees to attend benefits fairs to learn about topics like employer-provided benefits and financial planning. Again, employees’ attendance at the fairs is entirely optional, open to all employees and not related to the employees’ jobs.

DOL analyzed the facts set forth in the letter using the U.S. Supreme Court’s 1944 determination in Armour & Co. v. Wantock that the compensability of an employee’s time depends on “whether it is spent predominantly for the employer’s benefit or for the employee’s” and separate regulations (29 C.F.R. § 785.16.) which provide that an employee is not entitled to compensation for “off duty” time — “periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes.” Based on that analysis, WHD found that because “the activities described in the letter predominantly benefit the employee, they do not constitute compensable work time under the FLSA.”

As such, WHD concluded that regardless of whether the activities occur on-site or during regular working hours, “the FLSA does not require compensation for the time employees choose to spend engaged in the activities described in the letter.”

DOL encourages the public to submit requests for opinion letters to WHD using this website and reminds the public that the request must state that the opinion is not sought by a party in a WHD investigation or for use in any litigation that was initiated prior to the submission of the request.

HR and the Courts: Recent Rulings and Legislation

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

University Argues ERISA Claims Not Subject to Jury Trial

MIT is one of a dozen or so prominent universities to be sued in separate Employee Retirement Income Security Act (ERISA) collective actions across the country claiming breach of fiduciary duty for offering too many investment choices and allegedly charging unreasonably high administrative fees among other fiduciary charges and allegations. A number of the cases have been dismissed by federal judges, and at least one was settled. Many are in various stages of preliminary litigation, with some possibly heading to trial.

In late August, MIT’s trial counsel argued to the federal district court judge handling the case that in accordance with Supreme Court precedent, the plaintiffs do not have a right under ERISA to a jury trial. They argue instead that the case should go to a bench trial, wherein the applicable sitting federal district court judge conducts the proceedings and decides the outcome.

MIT’s counsel argued that “ERISA itself provides no express right to a jury trial, and the Seventh Amendment only guarantees the right to a jury trial in suits at common law.” The counsel also argued that the Supreme Court has interpreted “suits at common law” to exclude ERISA lawsuits.

We will follow developments in this and the other university ERISA lawsuits.

California Sexual Harassment Legislation Restricting Arbitration and Non-Disclosure Agreements Headed to Governor for Signature

California lawmakers recently passed legislation which would ban mandatory arbitration of sexual harassment cases in the state and also ban the use of non-disclosure agreements prohibiting employees from disclosing sexual harassment violations. The legislation would allow for “voluntary” arbitration of sexual harassment litigation and would allow plaintiffs to request non-disclosure agreements but would ban employers from requiring them as a condition of settlement. The California legislature is also working on six other bills inspired by the Me Too movement.

New York was the first state to act in this area and already restricts mandatory arbitration of sexual harassment claims and non-disclosure agreements. In addition to employees, the New York law also protects contractors and others from workplace sexual harassment. Commentators state similar legislation is “in the works” or being considered for proposal in several other states.

Appeals Court Affirms University’s Summary Judgement Victory Rejecting Former Professor’s National Origin Discrimination Allegations and Retaliatory Discharge Claims

The U.S. Court of Appeals for the Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) affirmed a trial court’s decision to dismiss a former professor’s claims that Longwood University denied her tenure because of her national origin and denied her due process (Balas v. W. Taylor Reveley IV, et al. (4th Cir, Case #17-1991, 8/16/18)).

The plaintiff had taught at the university for seven years and claimed she was denied tenure because of her national origin and then was retaliated against by being fired after she raised the national origin discrimination claims. The trial court found that the university presented a valid reason for her tenure denial and firing (the university stated that her teaching and academic work was sub-par) and that she failed to show that the reasons proffered were pretextual.

OFCCP Issues New Enforcement Directive Calling for Investigators to Factor in Religious Freedom in Alleged LGBT Discrimination Matters

The Office of Federal Contract Compliance Programs (OFCCP) recently issued a new enforcement directive calling for investigators to factor into their investigations of LGBT cases recent U.S. Supreme Court rulings and White House Executive Orders that protect religious freedom.

Commentators say the directive was done to target the Labor Department’s ban on bias against gay and transgender workers. The acting OFCCP director stated in issuing the directive that these instructions are connected to an upcoming rulemaking that will be added to the OFCCP’s regulatory agenda.

State Marijuana Laws Conflict With Federal Mandate, Leaving Disability Cases to Be Determined Differently Depending on Employers’ State of Operations

Vermont is the latest state to legalize limited recreational use of marijuana for adults over 21 years of age (the state has already legalized the use of medical marijuana). In light of these developments, drug testing and disability cases continue to raise questions. The federal government guidance under the Americans with Disabilities Act is that an employer is not required to accommodate the use of medical marijuana, even if legally prescribed under a state law, because the use is still illegal under federal law. It is commonly interpreted even in states where recreational use and medical use of marijuana is permitted that use on the job which results in impairment is not allowed and generally can be grounds for termination. There may be exceptions under some state disability laws where medical marijuana use is permitted during working hours for a disability if the use does not create impairment and the job is not safety sensitive.

Current best practice is to seek guidance from local counsel in your state if you operate in a state which has legalized the use of medical marijuana and/or its use for recreational purposes. Employee policies and handbooks should be reviewed and revised depending on your state of operation for the latest compliance practices in your state.

Wildfire Projects Tackle Recruitment, Faculty Education, Employee Relations and Hiring Veterans

Last July we shared with you how six early-career HR professionals started a journey to develop their skills and careers in higher ed. We recently had the pleasure of watching that class of CUPA-HR’s Wildfire program — Shamika Patterson, Tapiwanashe Nhundu, Chris Roediger, Thuy Nguyen, Heather Butterfield and Drexel King — as they ended their program year at CUPA-HR’s Association Leadership Program (ALP).

The capstone to their experiences involved giving back to the higher ed HR community in two ways —sharing successful practices and mentoring their peers.

Sharing Successful Practices

Each Wildfire program participant spends the year developing and carrying out a project, the goal of which is not only to develop their competencies as higher ed HR professionals and leaders, but also to contribute a body of knowledge to the higher ed HR community.

Here’s what the group worked on:

Recruitment and Selection

Nhundu’s goal was to bridge the gap between marginalized populations within her institution’s surrounding community in need of employment and eager hiring managers ready to enhance their campus departments. To achieve this, she partnered with organizations such as Berkshire Community College, McCann Technical School and Berkshire Immigrant Center, and identified opportunities to use the partnerships with these organizations to fill skills- and experience-gaps within the college’s workforce.

Butterfield paired her Wildfire project with research she’s conducting to attain her master’s degree in business administration from Viterbo University. She’s exploring how HR professionals in higher ed can screen for civility in the recruitment and hiring process. She expects to complete her research late this summer and will be sharing the outcome with us.

Faculty Education

Patterson set out to create a level of consistency among recruiting practices for faculty departments in her school. She used her Wildfire program shadow visit experience to learn what other institutions are doing and is developing a faculty recruitment handbook to help improve the process at her institution.

Nguyen took on the challenge of educating faculty in her school on HR processes and procedures to help streamline and improve collaboration with HR. She developed and conducted educational sessions with faculty departments in her school that were well received. She’s shared some of her materials with us in the Retirement Planning Toolkit in the Knowledge Center.

Employee Relations

Roediger made a move during her program year from Ohio to Arizona, where she’s now the director of HR for Northland Pioneer College — a school that serves a majority Native American population in a rural area of the state. For her project, she is developing an employee relations committee to boost morale in a workplace culture that has experienced significant and seemingly constant change over the last decade.

Hiring and Retaining Military Veterans

King is a former Marine who recently transitioned from the military to a learning and development role in higher ed HR. From that experience, he wanted to ease the transition for other veterans and help higher ed recruiters, hiring managers and supervisors attract and retain veterans. To do so, King conducted research to uncover best practices in this area. He’ll be sharing the guidance he uncovered in a CUPA-HR Essentials video to be released in the coming months.

Mentoring Peers

As these six professionals finished their program year with capstone projects on recruitment and selection; faculty education; employee relations; and hiring and retaining military veterans, a new group of Wildfire participants is just getting started. This year’s participants are:

                 2018-19 Wildfire Program Cohort

  • Abby King, HR Office Manager, University of Kansas Main Campus
  • Ashley Dugger, Senior HR Generalist & Title IX Coordinator, Sweet Briar College
  • Chi Herrington, Human Resources Associate, Harvey Mudd College
  • Christopher Dominiak, Manager, Benefits Systems & Administration, The University of Arizona
  • Deborah Lee, Senior HRIS Analyst, The Catholic University of America
  • William Budding, Human Resources Coordinator, Harvard University School of Dental Medicine
  • Latasha Gause, Employment Coordinator, Office of HR and Equal Opportunity, Coastal Carolina University
  • Maria Wingenbach, Assistant Director of HR – Total Rewards, Concordia College
  • Mollie Blanchard, Talent Management Specialist, Cochise College
  • Rachel Williams, Director of Talent Development, Ivy Tech Community College of Indiana – System Office
  • Tammi Stuebe, Assistant Director of Human Resources, Mercer County Community College
  • Tyler Mayo, Employee Relations Coordinator, Palm Beach Atlantic University

To enhance the experience by providing guidance and support for the new cohort, Patterson, Nhundu, Roediger, Nguyen, Butterfield and King are serving as peer mentors to the new group of Wildfire participants. They’ll provide thoughtful insight based on their own experiences with the program, needed support for the work the new participants are doing on their campuses, and valued advice on navigating work on campus and within the program.

The experience of being a mentor will help the program alumni build close relations with their peers in higher ed HR, develop leadership skills, and continue to nurture relationships they started during their time with the program. (For guidance on mentoring, check out the CUPA-HR Essentials videos on Making the Most of Your Mentorship and Making the Most of Being a Mentor.)

Learn more about the Wildfire program, and stay tuned to see the 2017-18 cohort’s project results as they’re finalized. If you’re interested in applying for the Wildfire program, mark March 2019 on your calendar — that’s when we’ll be accepting applications for next year.

HR and the Courts: Recent Rulings and Legislation

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

State Prosecutors Beginning to Bring Criminal Charges Against Employers That Violate Wage and Hour Laws

Minimum wage and overtime violations have for decades, as a matter of civil law, been the exclusive domain of government investigations or private lawsuits. However, prosecutors in New York State and California have recently begun to enforce wage and hour violations with criminal actions against some offending employers and their officials, particularly those who have allegedly “institutionalized” wage theft as part of their operating model. Because the construction industry has been ripe with action in this area, special care might be in order during campus construction projects.

ERISA Pension Litigation Against Prominent Universities Continues, With Mixed Results

At least 20 prominent universities across the country have been sued under ERISA in collective actions, facing allegations of excessive administrative fees, fiduciary violations for having confusing and too numerous investment alternatives, and other fiduciary breaches.

Recently, Northwestern University and the University of Pennsylvania received complete victories in their cases, with federal district court judges dismissing the cases as without merit on the basis of the summary judgement motions filed by the universities.

The University of Chicago took a different route and settled its case, reportedly for $6.5 million, after the presiding judge denied the university’s motion to dismiss and certified two classes of plaintiffs. Other judges have allowed similar lawsuits to proceed against Columbia University, Emory University, Johns Hopkins and Princeton, denying respective motions to dismiss.

Other judges have granted class status to lawsuits filed against New York University and Duke University, which could raise the stakes in ongoing litigation. Most recently, George Washington University filed a motion to dismiss the proposed class action filed against it alleging administrative and fiduciary violations of ERISA, stating the allegations were “meritless” and if allowed to proceed could “needlessly saddle the university with millions of dollars of legal fees, just to defend.”

Supreme Court’s Janus Decision Barring Public-Sector Unions From Collecting Money for Collective Bargaining From Nonmembers May Spur Union-Friendly Legislation in Democratic States

The recent decision of the U.S. Supreme Court in Janus v. American Federation of State, County, and Municipal Employees, Council 31, which bars public-sector unions from collecting money for collective bargaining from nonmembers on First Amendment grounds, is a blow to public-sector unions, including those representing employees, professors and staff at public colleges and universities. Nonetheless, in Democratic and union-friendly states, the decision may spur state legislatures to find other ways to assist public-sector unions, and a wave of public-sector union-friendly legislation may be on the horizon in “Blue” states.

In the Janus decision, the Supreme Court reasoned that collective bargaining itself is a political matter and that collecting money from public-sector employees who are not union members to support collective bargaining is a violation of those employees’ First Amendment rights to support or not support the effort. In areas such as the right of public-sector employees to strike and to seek mandatory arbitration, states which currently bar such activities or are silent on the matter may see a wave of proposals to allow such activity.

NYU Prevails in Adjunct Professor’s Hostile Work Environment and Sexual Harassment Litigation Where Allegations Were Not Tied to a Specific Individual, But Rather the Plaintiff’s Speculation as to the Authors of the Offending Communications

The Second Circuit U.S. Court of Appeals (covering New York, Vermont and Connecticut) recently affirmed a federal district court judge’s decision to dismiss claims made by a former adjunct professor, who, following termination, asserted that she had been the victim of sexual harassment and a hostile work environment and was terminated for raising these issues (Russell v. New York University et al. (Case no. 17-2527, 2nd Cir, July 1, 2018)).

The plaintiff claimed that she had received mailings including pornographic pictures of women and named five professors who she suspected were responsible for the harassment. She claimed that the university took no action against the alleged perpetrators and failed to even warn them to stop the offending conduct. She also claimed that she was terminated shortly after raising these allegations.

The appeals court affirmed the trial court’s dismissal of the plaintiff’s case, holding that the university had no legal duty to take any action against the alleged perpetrators where the plaintiff produced no evidence against them other than her “speculative say-so.” The appeals court also affirmed the dismissal of her retaliatory discharge allegations, holding that in the Second Circuit, the precedent stands that “temporal proximity alone is not enough to establish pretext” to commit unlawful discrimination. The plaintiff’s counsel stated that he intends to continue to pursue related litigation pending in state court.

Mandatory Paid Sick Leave Is Now Required in Almost 20 Percent of States, Plus D.C. and Puerto Rico

Employers in Arizona, Connecticut, Maryland, Massachusetts, New Jersey (effective October 2018) Oregon, Rhode Island, Vermont and Washington, plus the District of Columbia and Puerto Rico, must now provide some kind of paid sick leave to regular employees. While the statutes vary from state to state, many require some kind of paid sick leave for part-time and temporary employees as well. The trend appears to be growing and may affect more states as time goes on.

Supreme Court Bans Mandatory Union Fees for Public-Sector Workers

By Lisa Nagele-Piazza, SHRM-SCP, J.D.
Jun 27, 2018

In a closely watched case, the U.S. Supreme Court overturned 40 years of precedent by ruling that mandatory public-sector union dues are unconstitutional.

In a 5-4 vote on June 27, the justices held that states and public-sector unions may no longer require workers to pay agency fees. “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay,” Justice Samuel Alito Jr. wrote for the majority.

In dissent, Justice Elena Kagan said the decision will have large-scale consequences. “Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces,” she wrote.

“This decision frees public-sector employees from being forced to pay union fees as a condition of working for the government,” said Kevin Kraham, an attorney with Littler in Washington, D.C. “This is a landmark win for workers’ rights and the First Amendment, and a significant loss for public-sector labor unions.”

In recent years, there has been a renewed interest at the state level in banning mandatory union fees. Currently, 28 states have “right-to-work” laws that make it illegal to require workers to join a union or pay related fees as a condition of employment. But some of those state laws affect only the private sector.

The Supreme Court’s ruling makes every state a right-to-work state for the public sector, said Shannon Farmer, an attorney with Ballard Spahr in Philadelphia.

“The decision means unions must drive a better value proposition to keep current members and attract new ones,” said Daniel Guttman, an attorney with BakerHostetler in Columbus, Ohio. Now that fees are not guaranteed from all unionized public-sector employees, the services a union provides will need to become more apparent in order to retain their current membership levels, he said.

The Society for Human Resource Management believes in the fundamental right—guaranteed by the National Labor Relations Act—of every employee to make a private choice about whether to join a union, according to SHRM’s 2018 Guide to Public Policy Issues.

Unionization Rates

Union membership in the United States has significantly declined in recent years. In 2017, 10.7 percent of workers were union members, compared to about 20 percent in 1983, according to the U.S. Department of Labor’s Bureau of Labor Statistics (BLS).

In 2017, 7.2 million public-sector and 7.6 million private-sector employees belonged to a union. Although the actual head count was similar in each sector, a much higher percentage of public-sector workers (34.4 percent) than private-sector workers (6.5 percent) were unionized.

BLS statistics showed that union-membership rates were highest for local government workers (40.1 percent), such as teachers, police officers and firefighters. In the private sector, unionization rates were highest in utilities (23.0 percent), transportation and warehousing (17.3 percent), telecommunications (16.1 percent), and construction (14.0 percent).

Seven states—California, Illinois, Michigan, New Jersey, New York, Ohio and Pennsylvania—account for over half of the nation’s union membership, according to the BLS.

Controversial Case

In Janus v. AFSCME Council 31, U.S., No. 16-1466, the Supreme Court was asked to decide if public-sector employees can be required to pay union fees as a condition of employment. Mark Janus, an Illinois state employee, claimed that such fees are unconstitutional under the First Amendment’s rights to free speech and association.

Janus asked the court to overturn its 1977 ruling in Abood v. Detroit Board of Education. In that case, the Supreme Court held that government employees could be required to pay “agency” or “fair-share” fees to cover the cost of collective bargaining, contract administration and grievance adjustments—but that employees can’t be forced to cover a union’s political activities, such as lobbying.

Janus argued that collective bargaining is inherently political and that Abood should be overruled because it failed to apply heightened First Amendment scrutiny. “Employees are forced to pay a union for suppressing their own rights to speak and contract for themselves,” his petition said. “This is perverse, akin to requiring kidnapping victims to pay their captors for room and board.”

Union advocates, however, argue that agency fees prevent workers from “free riding,” or reaping the benefits of union representation without paying for it. This is because unions are required to represent all workers in a bargaining unit regardless of whether they pay fees.

The justices considered the same issue in Friedrichs v. California Teachers Association, No. 14-915. Experts who closely watched the case predicted that it would be decided 5-4 in favor of the worker who opposed mandatory fees, with Justice Antonin Scalia voting in the majority. However, Scalia passed away in February 2016 before a decision was reached, and the remaining justices deadlocked with a 4-4 vote.

The tie vote in Friedrichs left intact a 9th U.S. Circuit Court of Appeals ruling that such fees are permissible. Since then, conservative Justice Neil Gorsuch has joined the Supreme Court, and he cast the tie-breaking vote.

Gorsuch, along with Chief Justice John Roberts Jr. and Justices Anthony Kennedy and Clarence Thomas, joined the majority. Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor joined the dissent. Sotomayor also filed a separate dissenting opinion.

Divided Reactions

The high court’s decision has been met with mixed reactions from lawmakers. Some Republican legislators applauded the decision. “The Supreme Court’s ruling that millions of public sector employees will no longer have to financially support an organization they disagree with, just to keep their jobs, is a victory for free speech and a victory for the American workforce,” said Reps. Virginia Foxx, R-N.C., and Tim Walberg, R-Mich., in a press statement.

However, some Democratic leaders criticized the Supreme Court’s ruling. “Corporate interests have been rigging the system against workers for decades—and the Supreme Court just handed those interests a huge victory in Janus v. AFSCME,” tweeted Sen. Elizabeth Warren, D-Mass. Tom Perez, the Democratic National Committee chair and former secretary of labor, tweeted that the decision “is nothing more than blatant and disgraceful union busting.”

Underpaid and Underrepresented: Women of Color in the Higher Ed Workforce

“Intersectionality” – the combination of discrimination or bias experienced by individuals with overlapping identities, each of which is associated with discrimination on its own.

Research has shown that women and minorities each face their own challenges related to equal pay and representation in the higher ed workforce — women working in higher ed leadership earn less than White menwomen are underrepresented in higher-paying, more prestigious positions in American colleges and universities; and minorities are underrepresented, particularly in high-level higher ed jobs, and underpaid in the majority of campus jobs.

But how do these inequities intersect for women of color?

CUPA-HR’s new research brief, Representation and Pay of Women of Color in the Higher Education Workforce, seeks to answer this question by examining representation and pay equity for the intersection of two groups: women and individuals who identify as either Black/African American or Hispanic/Latino. The brief explores the kinds of inequity women and ethnic minorities experience and how inequities differ by position type.

Here are some findings:

  • Women of color are paid only 67 cents on the dollar compared to White men in the higher education workforce.
  • In three out of four job types (professional, staff and faculty) women of color are paid less than White men, men of color and White women.
  • Women of color are underrepresented in the higher ed workforce as a whole compared to their representation in the U.S. population.
  • Women of color are represented more in lower-paying staff positions and less in higher-paying faculty, professional and administrative roles. This stands in contrast to White men, whose representation increases significantly with pay and position level.



So how do we begin to address these pay and representation inequities among women of color in the higher ed workforce? Here are four steps higher ed HR professionals can take:

  • Share this brief with your institution’s leadership.
  • Evaluate internal equity for both pay and representation across different job categories. Consider demographic factors both independently and in combination.
  • Compare with peer institutions using detailed and accurate salary data. In this way, ensure fair market wages for all employees and establish competitive salaries when it’s necessary to compete for a limited pool of minority candidates.
  • Take analyses beyond wages and consider employee turnover, age and experience. This may allow for a longer-term view and the ability to address the pipeline of minority women incumbents who could potentially be promoted into higher-prestige roles.

Says Jasper McChesney, author of the brief, “Equity issues cannot be solved overnight, but by planning strategically, with unbiased data, higher education institutions can continue taking steps toward more diverse and equitable campuses.”

Read the Representation and Pay of Women of Color in the Higher Education Workforce brief, and check out CUPA-HR’s other research briefs.

This brief was made possible with support from Fidelity Investments.