Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, November 10, 2011

8th Circuit Holds Title IX Plaintiff Must Prove Actions Motivated By Gender As Opposed To Sexual Orientation


Wolfe v. Fayettesville Sch. Dist., ___F.3d____ (8th  Cir. Aug. 9, 2011), is an interesting case. The Eighth Circuit held that a student, who was subjected to anti-gay taunts by classmates, was not entitled to a jury instruction that Title IX’s requirement that discrimination be “on the basis of sex” was met by such taunts regardless of proof that the taunts were motivated by the student’s sexual orientation or perceived sexual orientation. It concluded that Title IX requires proof of  sex-based motivation for a Title IX deliberate indifference claim. The panel rejected the student’s argument that Title IX does not require that the harassment be based on the victim’s gender.

November 10, 2011 in Discrimination Law, Education Law | Permalink | Comments (0)

Thursday, September 8, 2011

Federal district court in California grants preliminary injunction allowing student with autism to be accompanied by service dog at school

C.C. Cypress Sch. Dist., ___F.Supp. 2d ____ (C.D. Cal. Jun. 13, 2011), is an interesting case. A federal district court issued a preliminary injunction allowing a student with autism to be accompanied by his service dog at school. The court concluded that the student had demonstrated a likelihood of success on the merits of his Americans with Disabilities Act (ADA) claim that the dog is a service dog under the ADA and the school district failed to demonstrate that its educational program would be fundamentally altered if the dog is allowed to accompany him to school. The court also found that the student had satisfied the other three elements required for issuance of injunctive relief.

Law review commentary on this controversial issue would be most welcome.

Mitchell H. Rubinstein


September 8, 2011 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (1)

Saturday, April 30, 2011

Title IX Abuse

College Teams, Relying On Deception Undermine Gender Equity is an important April 25, 2011 article from the New York Times. The article describes how many universities are padding their woman's sport teams in order to make it look like they are complying with Title IX. As the article states:

At the University of South Florida, more than half of the 71 women on the cross-country roster failed to run a race in 2009. Asked about it, a few laughed and said they did not know they were on the team.

At Marshall University, the women’s tennis coach recently invited three freshmen onto the team even though he knew they were not good enough to practice against his scholarship athletes, let alone compete. They could come to practice whenever they liked, he told them, and would not have to travel with the team.

At Cornell, only when the 34 fencers on the women’s team take off their protective masks at practice does it become clear that 15 of them are men. Texas A&M and Duke are among the elite women’s basketball teams that also take advantage of a federal loophole that allows them to report male practice players as female participants.

Title IX, passed in 1972 at the height of the women’s rights movement, banned sex discrimination in any federally financed education program. It threw into sharp relief the unequal treatment of male and female athletes on college campuses.

Mitchell H. Rubinstein

April 30, 2011 in Discrimination Law | Permalink | Comments (0)

Wednesday, April 27, 2011

Affirmative Action For Veterans

OFCCP recently proposed an affirmative action rule for veterans. That rule can be found 



Interestingly, the affirmative action here is more like simply outreach, record keeping and non-discrimination. I did not see anything expressly mentioning preference. It is the notion of preference which makes affirmative action so controversarial. 



Mitchell H. Rubinstein                                                                                                                                                                                                                                                                                            Hat Tip: Workplace Prof Blog





April 27, 2011 in Discrimination Law | Permalink | Comments (0)

Wednesday, March 16, 2011

The Common Law of Disability Discrimination


DePaul Law School Professor Mark Weber, just wrote an excellent article entitled The Common Law of Disability Discrimination which will appear in Utah Law Review. Professor Weber argues that common law claims sounding in breach of contract and tort are viable despite statutory remedies under the ADA. He believes that such claims would not be preempted and that causes of action for breaches of promises to accommodate or in violation of public policy (as well as others) are viable and can fill in the gaps where the ADA does not provide adequate coverage such as with respect to damage issues, coverage issues and statute of limitations issues. 

I know from personal experience that common law torts such as assault and battery are often asserted in sexual harassment cases. I see know reason why some disability discrimination claims cannot also assert common law causes of action.

This is a must read article. The abstract provides:

In many cases alleging race and sex discrimination, plaintiffs append common law claims to cases asserting federal or state statutory causes of action. In other race and sex cases, plaintiffs put forward these common law claims without making any federal or state statutory claims. Less frequent, and much less frequently discussed by scholars, are common law claims for conduct constituting disability discrimination. Nevertheless, there are sound theoretical and practical reasons to develop a common law of disability discrimination. 

On the theoretical side of the discussion, federal statutory disability discrimination claims are not exclusive, and the common law can both draw from and influence statutory developments. The evolution of the common law can be part of the adaptation of the social and legal environment that is needed to achieve equality for people with disabilities. Practically speaking, there are numerous obstacles to statutory disability discrimination claims; the common law may provide redress when statutory remedies are blocked. Common law claims may face difficulties of their own, however, and the law may need to be reformed to facilitate just results in common law cases. 

Existing scholarship includes several prominent discussions of disability and the law of torts, but there has been little development of the most important tort and contract remedies for disability discrimination. This article seeks to contribute to the scholarly discussion by considering common law remedies for disability discrimination in a systematic way and discussing how to align the remedies more closely with the goal of protecting civil rights of individuals with disabilities.

Mitchell H. Rubinstein 

March 16, 2011 in Discrimination Law, Law Review Articles | Permalink | Comments (1)

Tuesday, January 4, 2011

Does The NYS Division of Human Rights Have Jurisdiction Over Claims By Students Against Schools?

Discrimination, of course, can occur in all phases of life. Query whether a student can bring a discrimination case against a school district for race discrimination. The answer, which you would think would be clear, is completely unsettled. 

The issue has arisen because of the language of the statute. Executive law § 296 (4) states in pertinent part, as follows:

[i]t shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant of the provisions of article four of the real property tax law to deny the use of its facilities to anyone person otherwise qualified, or to permit the harassment of any student or applicant, by reason of 

The legal issue is whether a school district is an education corporation or an association. Matter of Union Endicott v. NYS Division of Human Rights, ___Misc. 3d____(Broom Co. July 26, 2010), contains a nice summary of the applicable case law. In the above decision, the court punts the issue and says that it is for the NYSDHR to examine the issue in the first place. Thus, the case was dismissed because of his failure to exhaust administrative remedies.

Law review commentary on this important issue would be most welcome. 



January 4, 2011 in Discrimination Law, Law Review Ideas | Permalink | Comments (0)

Thursday, December 23, 2010

Parking valet does not establish cause of action for sexual harassment aganist Casino


Cross v Prairie Meadows Racetrack & Casino, Inc, ___F.3d____(8th Cir, August 12, 2010), demonstrates that it is not easy to establish a cause of action for sexual harassment.  Here, the allegations did not rise to the level of a hostile work environment. Additionally, plaintiff could not establish that the casino knew or should have known about other alleged incidents of harassment that she failed to report. 

The  plaintiff worked as a parking valet. She claimed that a fellow valet, who was male, sexually harassed her via unwanted touching and sexual comments. In addition, she claimed two of her supervisors contributed to a hostile work environment by engaging in unwanted touching and making derogatory comments about women and sexual jokes. She did not report a number of these incidents to management or HR. 

The Eighth held that the reported harassment was not so severe or pervasive that it met the “high threshold” for a hostile work environment. The employee reported four discrete incidents over a period of two years, noted the court. First, she complained to a traffic supervisor that the coworker had grabbed her hair and pulled her out of the valet shack. Second, she reported that the coworker brushed the back of his hand across her breast in a purported effort to wipe something off her shirt. Third, she alleged that he responded in an angry and physically threatening manner when she rebuffed his request that they be “more than friends.” Finally, she reported that the coworker spread a rumor that she had performed oral sex on him. Taken together, these four incidents over two years were “insufficient to establish that the work environment was so permeated with discriminatory conduct that it altered a term, condition, or privilege of her employment,” the court determined. 

Even if these incidents had risen to the level of a hostile work environment, the employee failed to show that the casino did not adequately respond to the complaints. The traffic supervisor heard conflicting reports regarding the first incident, and his admonition to the valets to avoid horseplay was sufficient action under the circumstances, the court concluded. Although the traffic supervisor “would have been well advised” to take the second and third incidents more seriously, those incidents were isolated acts, rather than repeated ongoing instances of misconduct, the court explained. Moreover, because she had been given a copy of the casino’s sexual harassment policy upon hire, the employee knew there were additional avenues of relief that she could pursue if she was unsatisfied with the response to her complaints, but she failed to pursue them.

Mitchell H. Rubinstein 



December 23, 2010 in Discrimination Law | Permalink | Comments (1)

Tuesday, November 30, 2010

Supremes Hold No 1983 Liability Unless Municipal Custom or Policy Involved

Supreme Court

 Los Angeles County, Calif. v. Humphries, 562 U.S. ___(Nov. 30, 2010) was just decided by the Supremes. In a short decision, the Court held that a municipality is not liable for civil rights violations under 42 U.S.C. §1983 regardless of whether the relief sought by the plaintiffs is prospective or for monetary damages unless the plaintiffs can show that their injury was caused by a municipal policy or custom. The case involved two plaintiffs who continued to be listed on a California registry of persons investigated for child abuse even though the plaintiffs were exonerated some time after the initial accusations of child abuse. They challenged the state law, which requires listing persons in the registry who have been reported as child abusers and for whom the relevant state agency finds the allegations "not unfounded" even if the allegations are "inconclusive or unsubstantiated." The Ninth Circuit held the state law deprived the plaintiffs of constitutional rights by failing to include a procedural mechanism through which the plaintiffs could contest inclusion in the registry. Los Angeles County, who was sued along with the state attorney general and other local officials, argued it should not be liable for damages under § 1983 because it was state policy, not county policy, that deprived the plaintiffs of their rights. Justice Stephen G. Breyer, writing for a unanimous court, applied Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), and ruled that Monell's dictate that a municipality only be liable under §1983 where an injury is caused by a municipal "policy or custom" applies even when the plaintiffs are seeking prospective relief such as an injunction or a declaratory judgment. 

Mitchell H. Rubinstein

November 30, 2010 in Discrimination Law, Public Sector Labor Law | Permalink | Comments (0)

Thursday, July 1, 2010

Captain with shy bladder failed to take advantage of accommodation


Kinneary v City of New York, ____F.3d____(2d Cir. March 19, 2010), is an interesting 2d Circuit employment discrimination case. A sludge boat captain with a shy bladder, by not providing an adequate physician's note, failed to take advantage of the accommodation he sought and thus he was unable to make out a claim under the ADA. In his position at the New York City Department of Environmental Protection (DEP), the captain was subject to federally regulated random drug testing. At the time of his first drug test, the captain could not urinate on command, even after staying at the lab a full day and drinking water. Returning to the lab the next day, he eventually provided a sample. The captain had similar problems with random drug tests throughout his employment. He asked DEP if he could instead take a blood test and was told to get a doctor's note. The DEP did not accept the note and he was ultimately discharged. The DEP gave the captain the accommodation he sought and the opportunity to have his drug test cancelled based upon his physician's evaluation. However, the captain failed to take advantage of the accommodation. The physician's note did not constitute a basis for his test to be cancelled because it did not say the captain had a medical condition that could preclude him from providing a sufficient amount of urine for the test.

Mitchell H. Rubinstein

July 1, 2010 in Discrimination Law, Employment Discrimination | Permalink | Comments (1)

Thursday, May 20, 2010

Same Sex Marriage In New York

After Godfrey v. Spano: Is New York's High Court Ready to Recognize Out of State Same Sex Marriages? is an excellent May 2010 NYS Bar Journal article. The article discusses the NYS Court of Appeals decisions in Hernandez v. Robles and Godfrey v. Spano and concludes that the NYS Court of Appeals may be ready to recognize gay marriages legally contracted in other states. The article contains cites to gay marriage cases from other states and is certainly worth reading.

Mitchell H. Rubinstein

May 20, 2010 in Articles, Discrimination Law | Permalink | Comments (2)

Tuesday, January 19, 2010

Circuit Split On Cat's Paw Theory Of Liability

Circuit Split Over Cat's Paw Theory is an interesting Nov. 23, 2009 National Law Journal article. The issue is whether an employer can be liable for discrimination when the decision maker does not hold any animus. Rather, a lower level employee held the animus. A petition for cert in a case involving this issue was recently filed. As the article states:

On Nov. 9, the Supreme Court asked the solicitor general for the government's views on the case of Staub v. Proctor Hospital, which raises the cat's paw theory. The Court is considering whether to hear the case.

Vincent Staub, a member of the Army Reserve, alleges that he was fired from his hospital technician job in Illinois because of the influence of a supervisor who was anti-military. Staub claims that the nonbiased, ultimate decision-maker was influenced by the supervisor. A jury awarded him $57,640, but the U.S. Court of Appeals for the 7th Circuit reversed the verdict in March.

The federal circuit courts remain split on the concept of holding an employer liable for unlawful discrimination by someone other than the primary decision-maker. The 1st, 3d, 5th and 9th circuits have all upheld a cat's paw claim where the terminated employee could prove that a biased worker actually influenced the final decision. At the other end of the spectrum, the 4th Circuit has held that if the final decision-maker's motive is pure, an employer cannot be held liable for a subordinate's alleged bias. And the 10th Circuit requires evidence that the biased subordinate caused the firing or demotion through his discriminatory recommendations, reports or actions. 

Mitchell H. Rubinstein

January 19, 2010 in Discrimination Law, Law Review Ideas | Permalink | Comments (0)

Monday, January 18, 2010

Circuit Split Over Whether Independent Contractors Can Sue Under The Rehab Act

9th Circuit Widens On Rights of Independent Contractors is an interesting Nov. 24, 2009 article from the National Law Journal. It is about the recent 9th Circuit decision in Fleming v. Yuma Regional Medical Center. As the article explains:

The federal courts were already divided over the rights of independent contractors to sue for discrimination. The split widened last week when the U.S. Court of Appeals for the 9th Circuit ruled that a doctor whose contract was terminated after a hospital learned of his sickle cell anemia can sue under the Rehabilitation Act.

The 9th Circuit on Nov. 19 reversed a lower court ruling, which concluded that the Rehabilitation Act covers only employer-employee relationships and not claims by an independent contractor. "[T]here is no need to 'extend' the Rehabilitation Act; its language is broad enough to cover employees and independent contractors alike," the appeals court said.

While this was a case of first impression in the 9th Circuit, the decision creates a 2-2 split in the circuits on the issue. The 9th and 10th circuits now agree that the Rehabilitation Act can cover discrimination claims by an independent contractor. The 6th and 8th circuits have found that independent contractors are not covered, holding that the Rehabilitation Act incorporates the Americans with Disabilities Act's restricted coverage of direct employer-employee relationships.

Mitchell H. Rubinstein

January 18, 2010 in Discrimination Law, Law Review Ideas | Permalink | Comments (0)

Wednesday, January 13, 2010

Rehab Act applies to independent contractors


Fleming v Yuma Regional Med Ctr, ___F.3d____(9th Cir. November 19, 2009), is an important case. The 9th held that the Rehabilitation Act applies to independent contractors, as well as employees.  In a case arising from a medical center's failure to accommodate an independent contractor physician, the circuit court focused on whether Section 504 of the Rehab Act incorporates Title I of the ADA literally, and thus would only cover employees, or selectively, which would expand application. The court held that the incorporation was selective. First, the Rehab Act's scope, which encompasses qualified individuals and any operation for which an employer receives federal funds, is broader than the Title I of the ADA, which does not cover relationships beyond the employer-employee relationship. Second, the court ruled that Congress did not use the ADA to limit the Rehab Act's reach, as the former refers not to incorporation, but to standards. Nothing in Section 504 explicitly adopts limiting language and the court found that the incorporation referred to "standards applicable to… discrimination claims" not to who is covered. Finally, the Ninth Circuit held that literal incorporation would result in duplication between the two acts in the definition of certain terms. Such duplication, held the court, would force either the ADA's version to replace the duplicative Rehab Act portion, or would require harmonization. Thus, the Ninth Circuit found that Congress intended to create two parallel schemes, which argued in favor of a finding that the Rehab Act's incorporation of Title I of the ADA was selective.

Mitchell H. Rubinstein

January 13, 2010 in Discrimination Law, Employment Discrimination | Permalink | Comments (0)

Friday, January 8, 2010

GINA Became Effective Nov. 21, 2009

Law Seeks to Ban Misuse of Genetic Testing is an important November 15, 2009 article from the New York Times.  It is about the Genetic Information Nondiscrimination Act which became effective Nov. 21st. Reporter Steven Greenhouse describes this new law, that was signed into law by President Bush, as "[t]he most important new antidiscrimination law in two decades." The Act prohibits employers from requesting genetic testing or considering someone’s genetic background in hiring, firing or promotions and also prohibits health insurers and group plans from requiring such testing or using genetic information — like a family history of heart disease — to deny coverage or set premiums or deductibles.

Mitchell H. Rubinstein

January 8, 2010 in Discrimination Law | Permalink | Comments (0)

Monday, January 4, 2010

NY Times Editoral ADEA Claims Get Second Class Treatment

After 40 Years, Age Discrimination Still Gets Second-Class Treatment is an interesting Nov. 6, 2009 editorial from the New York Times. The point of the editorial is that age cases are treated differently than other discrimination cases. As the article states:

Age discrimination is illegal. But when compared with discrimination against racial minorities and women, it is a second-class civil rights issue. The Supreme Court drove its inferiority home again in June of this year, ruling that older workers must show that age was the decisive factor in their firing — not merely a contributing factor, which can be enough for a race or sex claim.

Congress is considering overturning the ruling. It should do so. It is particularly important in the current downturn, with age discrimination complaints soaring. But the problem is larger than any one legal standard.

The nation has always treated age discrimination skeptically. In the early 1960s, many employers had policies against hiring workers over a certain age and mandatory retirement rules. Yet when Congress drafted the Civil Rights Act of 1964, it was reluctant to include age as a protected category. Instead, it directed the labor secretary to study the matter.

Mitchell H. Rubinstein

January 4, 2010 in Articles, Discrimination Law | Permalink | Comments (0)

Tuesday, December 1, 2009

Fort Worth and Tampa Local Laws Recently Passed Which Outlaw Transgender Discrimination

Workplace Prof Blog reported on December 1, 2009 that both the City of Tampa and the City of Fort Worth recently passed municipal local laws which would outlaw transgender discrimination. However, the posting continues by stating that "perhaps the passage of these ordinances throughout the United States will allow for the passage of the ENDA in the near future."

Local laws which outlaw discrimination on the basis of sexual orientation are nothing new. Local law in many jurisdictions is indeed more progressive than federal law. However, I do not believe that the passage of these statutes makes the enactment of ENDA either more or less likely.

Mitchell H. Rubinstein   

December 1, 2009 in Discrimination Law | Permalink | Comments (0)

Monday, October 5, 2009

Court Dismisses Discrimination Case Against School District Which Refused To Allow Hearing Impaired Student To Guide Dog To School

Matter of East Meadow Union Free School Dist. v. State Division of Human Rights, ___A.D.3d___( 2d Dep't. Sept. 29, 2009), is an important decision to be aware of. After the school district refused to allow a hearing impaired student to bring a guide dog to school, the student sued in federal court. That case, which went to the 2d Circuit, was dismissed because plaintiffs remedies were under the IDEA.

Plaintiff also brought an employment discrimination administrative charge with the NYS Division of Human Rights which concluded that the School Districts policy was discriminatory. The 2d Department dismisses that case without reaching the merits of the controversary. Why?  Because a school district is not an "education corporation or association" within the meaning of Executive Law § 296(4). Rather, it is a municipal corporation. As the court explains:

Although the General Construction Law does define both "education corporation" and "school district," it establishes that they are mutually exclusive. Pursuant to General Construction Law § 65(a), a corporation is either a public corporation, a corporation formed other than for profit, or a corporation formed for profit (see General Construction Law § 65[a][1]); it cannot be more than one of these. An "education corporation" is a type of corporation formed other than for profit (General Construction Law § 65[c]). A "school district," by contrast, is a type of "municipal corporation" (General Construction Law § 66[2]). Since a "municipal corporation" is a public corporation (General Construction Law § 66[1]), a school district is a public corporation. Hence, a school district cannot be an "education corporation" within the meaning of Human Rights Law § 296(4).

I am a bit surprised that the court narrowly interpreted the Human Rights statute in this manner. I suppose it did not want to reach the merits of the case as it involves a situation where both sides may be right. The student needs his guide dog and the school needs to be concerned that others may be allergic to the dog.

Look for an application for leave to appeal to be filed the NYS Court of Appeals.

Mitchell H. Rubinstein

October 5, 2009 in Discrimination Law, Education Law | Permalink | Comments (0)

Saturday, August 22, 2009

100% Healed Policy

Can a company insist that employees only come back to work if they are100% healed?? That issue is currently being litigated in the 3rd Circuit.
A district court improperly certified a nationwide class of UPS employees alleging pattern-or-practice discrimination under the ADA, the Third Circuit ruled on interlocutory appeal. The plaintiffs’ central claim was that the company’s “100 percent healed” policy, which barred employees from returning to work under any medical restrictions, violated the ADA. The district court applied the “Teamsters framework,” a two-stage method of proof promulgated by the Supreme Court for adjudicating pattern-or-practice claims brought under Title VII. The lower court erred in doing so, ruled a Third Circuit panel (that included visiting former Supreme Court Justice Sandra Day O’Connor), because the court failed to first consider whether the class members were individually qualified under the ADA, and thus whether they "can or need to be reasonably accommodated." Adopting the Teamsters method of proof to adjudicate the claims “does not obviate the need to consider the ADA’s statutory elements.” The Third declined to address whether a “100 percent healed” policy constitutes per se discrimination under the ADA. “Even if deemed per se discriminatory,” the court wrote, such a policy “cannot give rise to a finding of liability and relief under the ADA without the statutorily required inquiry into whether those affected by the policy are disabled and able to perform the essential functions of the jobs they seek or desire with or without reasonable accommodation.” Accordingly, the Third Circuit overturned the lower court’s grant of class certification (Hohider v UPS, July 23, 2009).

This is a very interesting issue in need of law review commentary.

Mitchell H. Rubinstein

August 22, 2009 in Discrimination Law, Employment Discrimination, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Monday, August 3, 2009

State of Delaware Makes It Unlawful To Discrimate On The Basis Of Sexual Orientation

Delaware's state anti-discrimination statute was recently amended. S.B. 121 passed the General Assembly on June 24, 2009, and was signed by the Governor on July 2, 2009.  The law took effect immediately. A copy of that statute is available here. It prohibits discrimination in employment as well as in housing.

Mitchell H. Rubinstein

August 3, 2009 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 13, 2009

7thCir: No ADA claim for physician fired for making threats of physical violence

Sometimes you just cannot make these cases up. Bodenstab v Cook County, ___F.3d___(7th Cir. June 22, 2009), is one such case. The 7th held that a hospital did not violate the ADA when it discharged an anesthesiologist who allegedly threatened to kill his supervisor and coworkers. The 7th concluded that the physician failed to present sufficient evidence of pretext for his claim to survive summary judgment. Without deciding whether “interacting with others” qualified as a major life activity — or, if it did, whether he was so substantially limited — the appeals court determined the physician did not present any evidence calling into question the sincerity of the county’s belief that he had threatened to harm his supervisor and coworkers and that the county fired him for that reason. Rather, the undisputed evidence supported the county’s belief that he made the threats. In so holding, the Seventh Circuit did not decide whether the physician presented a direct threat to others because even if the county could establish its burden, summary judgment was nonetheless appropriate on the discharge claim. Moreover, the physician was not entitled to a reasonable accommodation. “There is no legal obligation to ‘accommodate’ conduct, as opposed to a disability.”

Mitchell H. Rubinstein

July 13, 2009 in Discrimination Law | Permalink | Comments (1) | TrackBack (0)