by Bronston McCord | Jun 18, 2020 | General, Labor and Employment, Legislation
On June 15, 2020, in the consolidated matters of Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G.& G.R. Harris Funeral Homes v. EEOC, et al, the United States Supreme Court ruled in a 6-3 decision that an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. Shortly afterward, Clayton County terminated his employment. In Altitude Express, Zarda was fired days after mentioning he was gay. In Harris, an employee was fired after the employee informed the employer that the employee planned to live and work full time as a woman. The U.S. Supreme Court held that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” Looking to the ordinary public meaning of each word and phrase comprising that provision, the Court interpreted it to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex—the very practice Title VII prohibits in all manifestations. While it was argued that Title VII was never intended to be read with such a broad brushstroke, the Court found that the use of the word sex was unambiguous and supported its holding.
by Ryan LaFlamme | Jun 16, 2020 | General, Labor and Employment, Workers’ Compensation
Workers’ Compensation practitioners and school benefits employees alike know that temporary total disability, and particularly the concept of voluntary abandonment of employment, are difficult areas of Workers’ Compensation law in Ohio. The Tenth Appellate District could not have framed the difficulty more succinctly than it did in a recent decision wherein the Court stated the issue of the case as follows:
“Can you be accused of assaulting your boss, get fired, be convicted (by plea, no less) of the assault, be at least preliminarily barred by court order from even setting foot in that workplace, and then still gain subsequent temporary disability status under Workers’ Compensation in connection with your (former) job?
The Court’s answer: Maybe.
Temporary total disability (TTD) is a benefit provided by the Bureau of Workers’ Compensation (BWC) to compensate for wage loss due to an injury. Voluntary abandonment is a defense an employer may assert against a claim for TTD. An employee who is terminated for violation of a written work rule may be considered to have abandoned his or her employment. If the employer is successful in raising the defense, the TTD will be denied because the disability due to the workplace injury is not the sole reason the employee is unable to return to the former position of employment. The concept was first used in a case wherein an employee had voluntarily retired. The court held that “If the employee has taken action that would preclude him from returning to his former position of employment, even if medically able to do so, the employee is not entitled to continue to receive temporary total disability compensation, because it was the employee’s own action rather than the industrial injury which prevented him from returning to his former position of employment.” The concept has been applied to employees who are incarcerated as well as those that voluntarily retire.
However, not all separations from employment will constitute voluntary abandonment. Involuntary retirement due to the workplace injury will not preclude payment of TTD nor, to the surprise of many employers, getting a new job. The Ohio Supreme Court has held that the abandonment of employment defense applies only to claimants who voluntarily leave the labor market, not to claimants who quit their former position of employment. Employee discipline situations can fall both ways, which brings us to the importance of this case.
Termination from employment can be considered voluntary abandonment if the employee willingly engaged in acts that lead to the termination. The Supreme Court allowed the defense in a case involving the violation of a policy that prohibited the accumulation of three consecutive unexcused absences. If those absences had been due to the industrial injury that was the basis of the claim, the defense would not have been accepted.
Turning back to the case at hand, here, the employee got into a heated exchange with the employer which lead to a physical altercation. The employee reportedly lunged at the employer, pushing him and causing him to fall back. The employee was terminated and arrested for assault. The employer had a policy against fighting and a policy against criminal convictions other than minor traffic offenses. The employer asserted those policies as the basis for his termination and in turn, attempted to use the termination as grounds to cut off TTD benefits due to voluntary abandonment. At the first hearing, the District Hearing Officer granted TTD for the employee finding that the employer had not set forth sufficient evidence as to when or why the employee was terminated. On appeal, the staff hearing officer agreed and again, found in favor of the employee.
The employee testified that he did not assault the employer. Rather, he acted in self-defense when the employer came towards him. When the employer approached, he put his arms up to stop him and the employer said, “you just assaulted me.” The employee testified that he plead guilty to avoid excessive legal fees and jail time. The staff hearing officer rejected the employer’s position that the employee had willingly engaged in fighting. It appears the employer did not bring any additional witnesses to testify and the hearing officer found the employee to be more credible than the employer. The staff hearing officer also rejected the termination was based on a criminal conviction because it came long after the termination.
The employer appealed the matter to court but by then, it was too late to improve its case. Once on appeal, the court must accept the findings of the hearing officer unless the decision is an abuse of discretion because the hearing officer did not have “some evidence” to reach its conclusion. It is a high bar to overcome. The court noted that the hearing officer is charged with assessing the weight of evidence and the credibility of witnesses and is entitled to deference by the court. The employer lost the appeal.
The moral of the story is to never underestimate the importance of the BWC hearing. These hearings are brief and informal and it can lull an unwary employer into essentially “winging it” when they think they have a strong case. Any and all documentary evidence should be prepared and submitted, and any and all witnesses should be brought to testify. The employer has only one, perhaps two, chances to influence what goes into the record of proceedings (the hearing officer’s decision) and that record sets the basis for a court’s review in the future. Make sure that “maybe” becomes a “yes.” If you have any BWC related questions, please reach out to one of our Workers’ Compensation team members.
State ex rel. Welsh Ents., Inc. v. Indus. Comm., 2020-Ohio-2801
by Ryan LaFlamme | May 27, 2020 | General, School Management
On May 6, 2020, we reported to you that a panel of the U.S. Court of Appeals for the Sixth Circuit issued a decision holding that there is a fundamental right to a “basic minimum education” that is potentially violated when the state fails to provide adequate public schools. As a follow up to that post, on May 19, 2020 the Sixth Circuit vacated that ruling so that it can be considered by the entire Sixth Circuit bench. The ruling allowed students from five of the lowest-performing schools in Detroit to sue Michigan officials over their inability to read. There was some speculation about whether a rehearing before the entire Sixth Circuit bench (en banc) would be sought by the Attorney general, who had publicly praised the decision. However, the Sixth Circuit did so itself (sua sponte) under rules granting it the power to vacate panel decisions for consideration by the entire bench. This is done so where there is a potential for “a precedent-setting error of exceptional public importance” or direct conflict with Sixth Circuit or Supreme Court precedent. As reported in the blog post, the U.S. Supreme Court has not expressly held that the U.S. Constitution provides a fundamental right to a basic minimum education. As the dissent noted, the Court held in Plyler v. Doe, that “p]ublic education is not a ‘right’ granted to individuals by the Constitution.” The effect of the ruling is that the opinion of the three-judge panel is vacated and of no force and effect. We will keep you posted on any developments in this important case.
by Jeremy Neff | May 18, 2020 | COVID-19 (Coronavirus), General, School Management
In light of ongoing bans on mass gatherings, many school districts are moving to a graduation ceremony plan that involves a video or other online elements (e.g. video, PowerPoint, etc.). While virtual commencements may be almost unheard of prior to this spring, there are long-standing legal requirements that apply to this format just as they would to traditional, in-person ceremonies.
Traditional graduation ceremonies include many features aimed at making them accessible to students, family and friends, and school employees who have disabilities. Because school facilities are already subject to Americans with Disabilities Act design requirements everything from the parking lots, building entrances, restrooms, and seating areas are already accessible. Specific to the graduation ceremony itself, a school might have wheelchair ramps to access the stage, a sign language interpreter, and other accommodations.
The same anti-discrimination laws that inform the accommodations described above also apply to online services offered by school districts. In recent years, disability rights activists have filed hundreds of complaints regarding school district website accessibility. In many cases, the activists had no connection at all to the district against which the complaint was filed. They were simply scouring the internet for websites with obvious accessibility concerns. It is entirely possible that a similar approach may be used in relation to this year’s virtual graduation ceremonies. In any event, it makes good sense for districts to address website accessibility, irrespective of the pandemic.
As such, and in our experience assisting school districts that were subject to website accessibility complaints, it seems that there are certain “red flags” that may have caused some websites to be targeted for complaints while others were not. Applying this lesson to virtual graduation ceremonies, there are some basic steps that can still be taken to reduce the risk of receiving an investigation letter from the Office for Civil Rights:
- Investigate practical captioning options: Many online platforms have captioning already built-in, so it may just be a matter of enabling this feature and editing the automatic captioning. Captioning can stand in the place of a sign language interpreter if that is normally offered at your district’s ceremonies. Of course, many graduation ceremonies in the past did not have an interpreter and this has not caused widespread complaints. The idea now is to investigate what options are available in the online platform that you use for the ceremony and to use available tools to reduce your risks.
- Pay attention to color contrast: School colors are a source of pride and frequently used in important rituals like graduation. However, if the school colors are low contrast (e.g. red and orange, green and blue) it may cause problems for people with vision-related disabilities. Consider pairing neutral alternative colors like black or white with a school color to avoid low contrast pairings.
- Ensure announcements of the ceremony details are formatted for screen reader use: People with vision-related disabilities sometimes use screen readers to access electronic written information. Some file formats are less screen reader-friendly. PDF files and other picture type files can be problematic. Simpler can be better when it comes to conveying information in writing. A basic email or attached Word document is less likely to cause challenges.
- Make access to the virtual ceremony accessible: A common challenge with school websites is that they are not easily navigated by individuals with physical challenges that prevent them from using a mouse. Consider emailing students and their families a link that goes directly to the virtual ceremony. The more steps that must be taken to get to the virtual ceremony, the more risk there is of an accessibility issue (e.g. a drop-down menu that cannot be easily accessed using keyboard tabbing, a link button that is not tagged, etc.).
The efforts taken by school districts to offer something special for seniors graduating under the current conditions are admirable. Paying close attention to accessibility for people with disabilities will help ensure that these celebrations do not lead to legal headaches down the road.
by Gary Stedronsky | May 14, 2020 | General, Legislation, School Management
On May 13, 2020, the Ohio Supreme Court upheld House Bill (HB) 70, which was passed in 2015 by the 131st General Assembly. HB 70 is a school takeover bill that gave sweeping powers to an appointed CEO in districts that struggled to meet overall state report card requirements.
The Youngstown City School District Board of Education argued that HB 70 was unconstitutional. HB 70 originally authorized schools to create community learning centers where academic performance was low. It was considered by the House on three separate days, after which it was ultimately passed by the House and went to the Senate for consideration.
The Senate considered the bill on three separate days also but made two amendments, one of which modified the structure of academic-distress commissions. Among other items, the amendment included a requirement that for any district that has received an overall grade of “F” on its state report card for three consecutive years, a commission must appoint a CEO who has “complete operational, managerial, and instructional control” over the school district. The Senate passed the amended bill and the House quickly concurred in the Senate amendments. The Governor signed the bill into law.
The Board of Education (along with its employee unions) sought a declaratory judgment and permanent injunction by challenging the constitutionality of the bill and the legislative process in enacting it. The Board of Education argued that the law violated an Ohio Constitutional provision that requires that every bill “be considered by each house on three different days,” and another provision that states that a city school district has the power “by referendum vote to determine for itself the number of members and the organization of the district board of education.”
The trial court ruled against the Board of Education, as did the Tenth District Court of Appeals. The Ohio Supreme Court agreed to hear the Board of Education’s appeal.
The Supreme Court found that the three-consideration provision in the Ohio Constitution was not violated. The Board of Education argued that the bill was substantially changed in the Senate from its original purpose of creating community learning centers. The Board of Education claimed that the amended bill must also satisfy the three-consideration provision of the Constitution. The Supreme Court disagreed. It found that a bill need not contain the exact same language in each of its three readings to be valid. “[A]mendments which do not vitally alter the substance of a bill do not trigger a requirement for three considerations anew of such amended bill.” Only where the subject or proposition of a bill is wholly changed must an amended bill satisfy the three-consideration provision.
In this case, the House and Senate each considered HB 70 on three different days. The Supreme Court found that the amended bill had a common purpose to the original bill of seeking to improve underperforming schools. Therefore, the amended bill that included the additional academic-distress commission provisions did not also need to satisfy the three-consideration provision of the Constitution.
As for the Board of Education’s other argument, the Supreme Court found that the Ohio Constitution governs the size and organization of school boards, not the power and authority conferred to them. Although HB 70 removed most of the Board of Education’s power, the Supreme Court found that the Constitution does not prevent that. Accordingly, the Supreme Court upheld HB 70 and affirmed the judgments of the lower courts that ruled against the Board of Education.
HB 70 does not apply to the vast majority of Ohio school districts. However, it has been declared constitutional and will remain valid Ohio law until such time as the legislature amends it. Recent legislation has been proposed seeking to end school takeovers such as this (SB 89) or dissolve the academic-distress commission overseeing Lorain City Schools (HB 9). Neither of those legislative attempts have become law. Members of the General Assembly have indicated that they will continue to address the status of academic-distress commissions and school takeover. We will monitor those efforts and keep you updated.
by Ryan LaFlamme | May 6, 2020 | General, School Management
A
panel of the U.S. Court of Appeals for the Sixth Circuit issued a 2-1 decision
holding that the Fourteenth Amendment’s Due Process Clause protects a
fundamental right to a “basic minimum education” that is potentially
violated when the state fails to provide adequate public schools. The Sixth
Circuit has jurisdiction over Ohio, Michigan, Kentucky, and Tennessee.
Judge
Clay, who wrote the majority opinion, summarized the crux of the Plaintiff’s
case. The Plaintiffs are students at several of Detroit’s worst-performing public
schools. They credit this substandard performance to poor conditions within
their classrooms, including missing or unqualified teachers, physically
dangerous facilities, and inadequate books and materials. Taken together, the
Plaintiffs say these conditions deprive them of basic minimum education,
meaning one that provides a chance at foundational literacy.
In
2016, the Plaintiffs sued several Michigan state officials, who they say are
responsible for these abysmal conditions in their schools. Plaintiffs allege
that state actors are responsible, as opposed to local entities, based on the
state’s general supervision of all public education, and also on the state’s
specific interventions in Detroit’s public schools.
The
Plaintiffs’ claims are all based on the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan
students receive an adequate education, the students in Plaintiffs’ schools do
not, amounting to a violation of their right to equal protection of the laws.
They also argue that the schools they are forced to attend are schools in name
only, and so the state cannot justify the restriction on their liberty imposed
by compulsory attendance. And in their most significant claim, Plaintiffs ask this
Court to recognize a fundamental right to basic minimum education, an issue the
Supreme Court has repeatedly discussed but never decided.
The
District Court found that the Defendants (various state officials including the
Governor, Members of the State Board of Education, the State Interim
Superintendent of Public Instruction, Director of the MI Dept of Technology,
and the State School Reform/Redesign Officer, in their official capacities)
were in fact the proper parties to sue, but it dismissed Plaintiffs’ complaint
on the merits.
First,
it found that the Plaintiffs had not alleged a proper comparator for their
equal protection claim, nor had they highlighted any state policy or action
that was not supported by a rational basis. Second, it found that the Plaintiffs
had not sufficiently pleaded their compulsory attendance theory, and so the
court only viewed their due process claim as seeking an affirmative fundamental
right. Third, the court held that basic minimum education is not a fundamental
right, and so Plaintiffs’ due process claim was dismissed. The plaintiffs then
appealed.
The
Sixth Circuit panel agreed that the Plaintiff’s equal protection and compulsory
education claims were not properly pleaded and were therefore rightfully
dismissed by the District Court. However, the panel agreed that the Plaintiffs
had “been denied basic minimum education, and thus have been deprived of access
to literacy.”
Judge
Clay, seeming to understand the gravity of declaring a new fundamental
constitutional right, wrote the following:
“The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something that the state must affirmatively provide. But just as this Court should not supplant the state’s policy judgments with its own, neither can we shrink from our obligation to recognize a right when it is foundational to our system of self-governance.
Access to literacy is such a right. Its
ubiquitous presence and evolution through our history have led the American
people universally to expect it. And education—at least in the minimum form
discussed here—is essential to nearly every interaction between a citizen and
her government. Education has long been viewed as a great equalizer, giving all
children a chance to meet or outperform society’s expectations, even when faced
with substantial disparities in wealth and with past and ongoing racial
inequality.
Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. Accordingly, while the current versions of Plaintiffs’ equal protection and compulsory attendance claims were appropriately dismissed, the district court erred in denying their central claim: that Plaintiffs have a fundamental right to basic minimum education, meaning one that can provide them with a foundational level of literacy.“
The
dissent argued that a holding such as this is beyond the court’s role and is
something best left to the Legislature and the citizens at-large. Judge Murphy
wrote in dissent: “The Due Process Clause has historically been viewed,
consistent with its plain text, as a negative limit on the states’ power to
“deprive” a person of “liberty” or “property.”
U.S. Const. amend. XIV, § 1. It has not been viewed as a positive command for
the states to protect liberty or provide property. A state’s decision “not
to subsidize the exercise of a fundamental right” has never been thought
to “infringe the right,” even in areas where the states have long
provided that assistance.”
Judge
Murphy also noted the practical difficulties with attempting to enforce a right
and its impact on the separation of powers issues. “How should those courts
remedy the schools that they conclude are not meeting the constitutionally
required quality benchmarks? May they compel states to raise their taxes to
generate the needed funds? Or order states to give parents vouchers so that
they may choose different schools? How old may textbooks be before they become
constitutionally outdated? What minimum amount of training must teachers
receive? Which HVAC systems must public schools use?”
The
U.S. Supreme Court has not expressly held that the U.S. Constitution provides a
fundamental right to basic minimum education. As the dissent noted, the Court
held in Plyler v. Doe, that [p]ublic education is not a ‘right’ granted to
individuals by the Constitution.” Accordingly, there is good reason to
speculate that this decision would not survive an appeal to the U.S. Supreme
Court. However, it is not certain where the case goes from here. The State
Attorney General could seek a re-hearing before the entire Sixth Circuit bench
(en banc). This may not occur as the Michigan Attorney General has already
praised the decision. It is also possible that the State Legislature may seek
to intervene and ask for a re-hearing. That request may have to go to the same
panel that made this decision. Finally, the Sixth Circuit could decide itself
(sua sponte) to re-hear the matter en banc.
We will, of course, keep you apprised of this matter as it progresses. While this case focuses on State officials, the next suit to enforce this new right could include local and County officials as well. This would put courts in the role of making independent judgments about the adequacy of all aspects of the educational services provided by schools in Ohio. This would be a significant break from the normal legal environment in which courts are reluctant to second guess the discretionary decisions of elected officials in the state, focusing instead on whether there are procedural violations to remedy.
Gary B., et al. v. Whitmer, et al 2:16-cv-13292
