Non-Discrimination Statements: In Sync And In Line With Your School’s Mission

[September 15, 2015]  Does your school’s application for admission ask potential students to provide a photograph? Are applicants required to indicate whether they are male or female? Do you promise not to discriminate against student applicants based on their genetic information? While all of these practices may be well-intended, some of them may miss the mark when it comes to avoiding discrimination and promoting diversity on campus.

Take the request for a photograph. The Internal Revenue Service (the “IRS”) notes that requiring a photograph may indicate that the admissions process is racially or ethnically discriminatory, even if that is not the school’s intent. Indeed, the IRS specifically requires private schools to include policies in their Bylaws and admissions materials, stating that the school does not discriminate based on race, color, or national or ethnic origin, as a condition of obtaining and maintaining § 501(c)(3) tax exempt status. Schools may, therefore, consider asking student candidates about their ethnicity as an optional question on an application, but should not insist on obtaining this information as a condition of admission.

Where does your state law stand on gender identity and expression? Some states prohibit this form of discrimination in public schools and many independent schools are choosing to take a fresh look at dress codes, restrooms and locker rooms with this characteristic in mind. Be sure that your school’s non-discrimination statement and application for admission are consistent with your school’s philosophy on this evolving topic. Do you need to know the gender of the applicant? You might consider increasing the number of check boxes on an application to permit a wider range of answers to the gender identity question, or include no check boxes, but ask a student applicant to self-identify in a way that best fits the applicant. Of course, in single-sex schools, this topic is significantly more complex.

Schools sometimes try to be inclusive with respect to genetic information. Under federal law, employers are generally prohibited from discriminating against employees based on genetic information; however, discrimination based on genetic information is not prohibited by independent schools toward student applicants and current students.  Though your school may not intend to evaluate students on this basis, schools are not legally required to include this characteristic as a protected class with respect to student applicants.

With schools focused on diversity and inclusion for the whole school community—based on financial need, disability, citizenship, the protected classes mentioned earlier and other characteristics—it is important to ensure that your non-discrimination statements and practices are consistent across the organization, are in sync with your school’s mission and are lawful. We recommend that independent schools review their non-discrimination policies wherever they appear—as illustrated in the list below—to ensure that they are drafted appropriately for both students and employees:

  • Student/Parent Handbook(s);
  • Employee/Faculty/Staff Handbook(s);
  • Acceptable Use Agreements (Employees/Students);
  • Bylaws;
  • Employment Applications;
  • Enrollment Contract; and
  • Website

If you have any questions about legal compliance with respect to non-discrimination policies and diversity initiatives, please do not hesitate to contact a member of the Firm’s Education Practice Group.


Gender Identity: A New Challenge For Schools

[July 22, 2013]  Recently, a first-grader in Colorado who was born a boy but identifies as a girl was awarded the right to use a girls’ restroom at school.  In its decision, the Colorado Division of Civil Rights noted that the school’s prohibition on the first-grader’s use of the girls’ restroom had created an environment that was “objectively and subjectively hostile, intimidating or offensive.”  Similar cases have surfaced across the country.  For example, the Maine Supreme Judicial Court recently heard a similar case: the question was whether a boy who identifies as a girl is entitled to use a girls’ restroom at school, under Maine’s human rights law.

As these cases illustrate, gender identity issues at schools can create both practical and legal challenges.  Some of the questions that consistently arise in these cases are: which bathroom can the student use? Which pronoun should be used when referring to the student who is of one gender, but identifies with another?  School policies and practices that do not properly address gender identity issues can expose schools to potential legal liability.  At least thirteen states (i.e., California, Colorado, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Carolina, Oregon, Vermont, and Washington) and the District of Columbia have passed laws that specifically prohibit bullying, harassment, intimidation or discrimination on the basis of gender identity in schools.

We recommend that schools carefully evaluate applicable laws in the school’s jurisdiction.  We also recommend that schools update their policies related to anti-discrimination, anti-bullying and anti-harassment to account for potential gender identity issues.

Please do not hesitate to contact us if you have any questions regarding gender identity issues or the applicable state law that governs your policies and practices related to gender identity.

Supreme Court Strikes Down DOMA

[July 8, 2013]  In a pair of highly anticipated decisions, a divided Supreme Court struck down the federal Defense of Marriage Act (“DOMA”), which denied federal benefits to same-sex married couples.  Separately, by declining to decide a case, the court effectively allowed same-sex marriage in California.  Neither decision declares a broad constitutional right to same-sex marriage for all American citizens.

The ruling in the DOMA case extends many benefits to same-sex married couples living in states that allow same-sex marriage.  Employers in those states must review their employee-benefit packages to comply with the change, including their health and retirement plans.  For example, same-sex married couples are now entitled to the same tax treatment of health-insurance premiums as opposite-sex couples.  They are also entitled to the protections of the Family and Medical Leave Act (FMLA), social security, and COBRA.  Same-sex spouses are further entitled to automatic beneficiary rights for pension plans and 401ks.

The issue is more complex for large, multistate employers.  The Supreme Court did not address the effect of its decision on same-sex couples who marry in a state that permits such unions and then move to a state that does not.  Federal benefits for such couples will vary by agency, and guidance from federal regulators may take time to develop.

Thus, employers in Massachusetts and other states that recognize same-sex marriage must identify any gaps between benefits they currently offer to same-sex married couples and benefits they are now required to offer.  For example, such employers must review their plans and policies and remove provisions concerning taxation of health benefits for same-sex married couples.  Employers must also be prepared to deal with issues concerning same-sex beneficiaries of pension plans and 401ks.  As employers may face some of these changes without much advance notice (for example, a spouse’s automatic beneficiary rights upon death), employers may wish to move this issue to the top of their “to do” lists.

Are Employers Penalizing Employees For Using Workplace Flexibility Policies?

[June 20, 2013]  A recent New York Times article provides some food for thought concerning whether workplace flexibility policies actually hurt employees instead of helping them.  The article reviews recent research studies examining negative effects on employees’ careers after they take parental leave, work reduced hours, or participate in other programs aimed at providing flexibility.

Is this happening in your workplace?  If so, how should your company handle this phenomenon?  Change the policy?  Change the culture?  Training?  … Or do nothing?

Of course, treating male employees differently as a result of their participation in such flex schedule programs, could result in a whole host of legal claims and employee relation problems, too.

If the attached article gets you thinking about your leave policies, please feel free to call us to discuss.

Employers: Proceed With Caution When Using Background Checks

[June 3, 2013]  The New York Times recently reported on a risky practice involving background checks:  many U.S. retailers are obtaining and using information about applicants’ past admissions of stealing on the job.

The Federal Trade Commission (“FTC”) is cracking down on this practice, examining whether the databases that contain this information comply with the Fair Credit Reporting Act (“FCRA”).  Key concerns include whether the workers are coerced into confessing, and whether they understand what they are signing or how it will be used.

Employers receiving such information as part of a background check should be cautious about using it as the basis for an employment decision.  The risks may greatly outweigh the benefits.

FCRA is being applied to new technology in other ways.  For example, on May 1, 2013, the FTC approved a settlement order in its first FCRA case involving mobile applications (“apps”).  Companies were selling apps that allowed users to access criminal records, without complying with FCRA.  The settlement order requires compliance in the future.

When considering using new hiring tools, employers should always consider whether such use complies with FCRA as well as any applicable state law (see our article about the Massachusetts CORI law here).

Schwartz Hannum Provides Pro Bono Services To Back Bay Businesses

[May 2, 2013]  As described in a recent Boston Business Journal (“BBJ”) article, Schwartz Hannum has volunteered, through the Boston Bar Association, to provide pro bono legal services to businesses affected by the Boston Marathon bombings.  Such businesses may face difficulty obtaining insurance coverage for property damage and business interruption, and may need to provide accommodations for injured employees.  Another issue flagged by Will Hannum in the BBJ article is whether workers’ compensation insurance will cover injured workers.

Emphasizing that this crisis presents unique challenges, Will explained to the BBJ:  “This is a situation in which [business owners and employees] are going to work together and get through it together.”  The goal for employers is to do so in a way “that will be in the employers’ best interest at the same time as the employees’ best interest.”

As reported in the ABA Journal, Will has also explained that businesses could “get themselves in trouble” if they take actions perceived as unfair, such as firing employees who are too upset to work.

Schwartz Hannum looks forward to assisting Back Bay businesses with practical, creative, and thoughtful solutions to these challenging issues.

U.S. Department Of Education And Yale University Reach Resolution In Title IX Matter

[July 23, 2012] Yale University and the U.S. Department of Education’s Office for Civil Rights (“OCR”) recently entered into a voluntary resolution agreement resolving claims that Yale had allegedly violated Title IX of the Education Amendments of 1972 (“Title IX”) by failing to properly respond to incidents of sexual misconduct.  Title IX, which this year marks its 40th anniversary, prohibits discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance.  The claims against Yale in part stemmed from a 2010 incident during which members of a fraternity at Yale chanted:  “No means yes!”  As part of the voluntary resolution agreement, Yale agreed to take a variety of actions, including:

  • Forming a committee on sexual misconduct, which will promptly and equitably respond to complaints of sexual misconduct under Title IX.
  • Conducting training regarding topics related to prevention and response to sexual misconduct for members of the Yale community, including training for freshmen and sophomore students.
  • Establishing the Sexual Harassment and Assault Response and Education Center that will provide referrals for students seeking services as a result of sexual misconduct.

Title IX does not simply apply to colleges and universities receiving federal financial assistance, but may also cover other institutions, including private pre-schools, elementary and secondary schools.  For example, the United States District Court for the Western District of Pennsylvania held that a religious high school was subject to Title IX because:  (1)  it participated in the E-rate program and (2) another school in the diocese (to which it belonged) participated in the National School Lunch Program.  Russo v. Diocese of Greensburg, No. 09-1169, 2010 WL 3656579 (W.D. Pa. Sept. 15, 2010).

We recommend that all educational institutions ascertain whether they fall under the mandates of Title IX.  Moreover, educational institutions that are subject to Title IX should work with legal counsel to ensure compliance with Title IX and the associated regulations.  For example, institutions subject to Title IX are required to designate an employee to coordinate compliance with Title IX, disseminate a non-discrimination policy consistent with Title IX regulations, and adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sexual misconduct complaints.

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Please do not hesitate to contact us with any questions about Title IX and how it may affect your institution.

U.S. Supreme Court Allows Discrimination By Religious Institutions

In a unanimous decision, the U.S. Supreme Court recently affirmed that a “ministerial exception,” grounded in the Establishment and Free Exercise Clauses of the First Amendment, bars religious ministers from bringing discrimination claims against their employers.  The Court’s decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, confirms that religious institutions have broad discretion in making employment decisions that affect their ministers.  Read more.