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Sixth Circuit: Title VII Prohibits Discrimination Based on Transgender and/or Transitioning Status

Less than one week after the Second Circuit Court of Appeals held that Title VII’s prohibition on sex discrimination bars discrimination on the basis of sexual orientation, the Sixth Circuit Court of Appeals issued its own landmark Title VII decision finding that the antidiscrimination statute prohibits discrimination against transgender or transitioning individuals even where an employer’s religious exercise may be substantially burdened. Continue Reading

Save the Date: Labor and Employment Spring Seminar 2018 Public Sector Legal Update

Please save the date and pre-register for Shipman & Goodwin’s 2018 Labor and Employment Public Sector Spring Seminar on May 4, 2018. Note: This program is intended for Public Sector employers.

Recent trends in the workplace related to claims of harassment, discrimination, and workplace violence, suggest that now more than ever, employers must to be ready to deal with claims quickly and effectively. This year, our seminar will focus on Addressing Employee Claims of Harassment and Hostile Work Environment – The Graduate Course and will provide employers with the tools required to handle these sensitive matters. This presentation presumes a basic understanding of employment and discrimination law. Continue Reading

Plan Now to Retain Your Workforce: The Uncertain Future of Employment Authorization for H-4 Dependent Spouses

Certain H-4 dependent spouses of H-lB visa holders have been eligible for U.S. employment authorization, following a U.S. Department of Homeland Security (“DHS”) rule change in May 2015[1]. Since that time, thousands of spouses with H-4 classifications have applied for and obtained employment authorization documents (“EAD”). With these EADs, they have entered the U.S. workforce in various critical and much-needed professional and non-professional and skilled or unskilled jobs. Other H-4 dependent spouses hope to obtain such U.S. work authorization as soon as they are eligible for it.

Under the Buy American Hire American Executive Order (Executive Order 13788), these H-4 dependent spouses are now in serious jeopardy of losing their eligibility for such U.S. work authorization. Continue Reading

Reed College faces Union vote among its student housing advisors

Union organizing among students is not just limited to teaching assistants. Other students who are being paid and supervised by a college or university may select a bargaining representative, at least, until the Labor Board gets to revisit the Columbia University decision that permitted teaching assistants to join a union.

Now Reed College is facing an election among its student housing advisors or residence advisors. The NLRB’s Regional Director found that the student housing advisors were employees because they were paid the equivalent of their yearly room and board expenses, but also because they had to apply for the positions and then be trained to do the job. They had to come to campus before students arrived and remain on campus to close the dormitories. They also had to sign an agreement that laid out expectations and disciplinary guidelines. Their job performance was reviewed and if there were negative evaluations then the student could be disciplined or terminated from the position.

The College argued that the Columbia University decision was wrongly decided and that it did not apply in this case as this was not a teaching assistants case. The College emphasized that what the housing advisors did was focused on supporting and mentoring other students which is inseparable from their role as students.

The Regional Director concluded that the housing assistants were performing services for compensation, that the College was controlling what and how they provided the services and that there was no compelling policy reason to exclude them from coverage under the National Labor Relations Act.

The College also argued that if the housing assistants were covered by the law, that they should not be a separate group, but that other students who were paid for services should be part of the potential bargaining unit. The other student categories were: student health advocates, students assisting with the safety of other students during weekend evenings and special social events, students mentoring international students, students assisting students understand consent rules and what the College’s policies and procedures in response to sexual misconduct and sexual harassment complaints, and students serving as career advisors and as tutors. Again, the Regional Director rejected the creation of a broader voting group, finding that the housing assistants were part of a different department, were required to have different skills and training, and had different job functions. The housing advisors also were distinct from the other students with no overlap in functions, no exchange of job responsibilities, and infrequent contact with the other students in performing their responsibilities. The housing advisors performed their functions in different places than the other “student-employees,” including the fact that the housing advisors were required to live in specific College housing, and were compensated in a completely different manner.

Their election will take place within three weeks of the Regional Director’s decision. The election will determine whether the Student Workers Coalition represents a majority of those voting.

A Practical Guide to Connecticut School Law, 9th Edition is Now Available

Thomas B. Mooney’s A Practical Guide to Connecticut School Law is the leading treatise on Connecticut school law, and it is used by school administrators and other educators, school board members and practitioners throughout the state. It also serves as the textbook for a number of school law courses offered at the graduate level in Connecticut universities. The Guide was first published in 1994.

New to the Ninth Edition:

  • Changes in Teacher Evaluation and Tenure
  • New Rules Regarding Employee Background Checks
  • New Requirements concerning Student Data Privacy
  • New Rules for Suspension and Expulsion and Alternative Educational opportunities
  • Revised Requirements Governing Seclusion and Restraint
  • The new “Every Student Succeeds Act”
  • The CCJEF Case and Ongoing Litigation
  • Minimum Budget Requirements
  • Changes in the Rules that Boards of Education and School Administrators Must Follow

Written for the layperson, the Guide sets out in practical terms the basic principles of school law in Connecticut. It is divided into seven chapters that deal with the major areas of school law as follows:

Chapter One: Board Organization, Authority and Responsibilities
Chapter Two: Religion and the Schools
Chapter Three: Teacher Employment, Evaluation And Dismissal
Chapter Four: Students
Chapter Five: Special Education
Chapter Six: Collective Bargaining
Chapter Seven: Obligations of School Boards As Employer

The Guide is published by the Connecticut Association of Boards of Education (CABE), and it is available for purchase from CABE. To purchase a copy, you may order online or call CABE at 860-571-7446 or 800-317-0033.

For additional information on obtaining Thomas B. Mooney’s book or other CABE publications, visit the CABE website at https://www.cabe.org/page.cfm?p=1232.

SEE YOU IN COURT! – March 2018

Mark Millennial was recently elected to the Nutmeg Board of Education. More than ten years younger than any of the other Board members, Mark brings a new approach to Board service. His presence on social media is far more extensive than any of the other Board members. Mark is constantly tweeting out about the doings of the Nutmeg Public Schools, and his Facebook page has become a virtual meeting place for debate about the challenges facing the Nutmeg Public Schools.

With the coming of the budget season, Mark went into high gear. His Facebook page reads: “Mark Millennial, Member of the Nutmeg Board of Education: I want to hear from YOU!!” and every three days Mark posts information about school spending, followed by a question about the related expenditure of Board funds.

For example, last week Mark posted a chart setting out school spending on high school athletics, broken down by sport, followed by the question, “Is Nutmeg meeting its obligations under Title IX?” Many residents posted comments in response to this question, some to the effect that girls sports are being neglected, while others claimed that boys’ sports have suffered with ill-advised reallocations to girls’ sports. Mark was delighted that his Facebook page was getting such traction, and he commented back on every single comment that his followers posted.

As can happen, a skunk then spoiled the garden party. Al Angry, a local gadfly, got into the discussion with rude and highly critical posts that took issue with every comment Mark made on his Facebook page. “What do you know, Mark Millennial,” Al posted rhetorically, “about spending hard-earned tax dollars after your parents paid for your education at a fancy college?” Mark tried to calm Al down with a patronizing post about appreciating his viewpoint, but things only got worse. Al’s next post started, “You’re wrong, and I will tell you how you are wrong,” and Al proceeded to provide a detailed, somewhat snarky rebuttal to each of Mark’s posts.

Mark was upset that Al’s negative posts were changing the tone of Mark’s Facebook page. So he did what any good millennial would do – he blocked Al’s access to his page. The tone of the comments on his Facebook page promptly improved.

Al was fit to be tied, and he did what any good gadfly would do – he sued Mark in federal court for violating his rights under the First, Fourth and Fifteenth Amendments to the United States Constitution. His ten-page complaint alleged that Mark’s actions in blocking him were improper viewpoint discrimination in violation of his free speech rights, and further that Mark’s actions in summarily blocking him from the Facebook page violated Al’s right to due process.

Mark was shocked and upset to be sued by Al. He didn’t see how Al had a right to insist on posting his negative comments on Mark’s personal Facebook page, but Mark certainly didn’t have the money to hire a lawyer to defend himself in litigation. He called Mr. Superintendent, who listened sympathetically to Mark’s story. Mr. Superintendent asked if Mark considered his Facebook page his own personal business, and Mark emphatically answered yes. If such is the case, Mr. Superintendent then told Mark regretfully, this is not Board business and that Mark is on his own.

What should Mark do?

Continue Reading

Independent School Webinar: Safeguarding Data – Developing a School Data Privacy and Security Program

Shipman & Goodwin attorney Bill Roberts will discuss privacy of personal information as a growing risk management concern for independent day and boarding schools. This webinar will address the legal requirements that apply to such schools and outline key risk mitigation strategies. Bill will discuss best practices for the development of a holistic school data privacy program, including recommendations on structure, policies and practices.

When: March 21, 2018,  12:00 PM – 1:00 PM EDT
Where: Webinar

Who should attend: Independent day and boarding school Heads of School, Information Technology Managers, Business Office Managers and Human Resources Professionals.

CAS Legal Mailbag Question of the Week – 2/27/2018

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As the principal in my building, I try to give teachers some space, so I don’t often stop by the teachers’ lounge. But yesterday I did so, and now I have a question. The teachers were chatting animatedly about the planned National School Walkout on March 14 to protest gun violence. One of the teachers announced grandly that he would be walking out of class at exactly 10:00 a.m. that day and that he would be encouraging his students to follow suit. The room got quiet, however, when I asked him rhetorically where he was planning to work starting on March 15. Then, after a minute’s reflection, the teacher became somewhat aggressive, and he pushed back, claiming that he has a right under the First Amendment to participate in the protest.

I am not proud to admit that then we got into it. In a condescending tone, the teacher cited a couple of Supreme Court cases about free speech and “comment on matters of public concern.” I responded by telling the teacher that he could protest sixteen hours a day, but not when he is being paid to teach. At the end of this brief and somewhat antagonistic exchange, the teacher told me that we would have to agree to disagree.

I don’t want to agree with this teacher on anything. Is he correct in his claim that he has the right under the First Amendment to walk out on March 14?

Thank you,
Old School

Continue Reading

Anne Littlefield Quoted in Special Ed Connection Article “After the MDR: What to do if student’s misbehavior is manifestation of disability”

Anne Littlefield discusses steps to follow if a manifestation determination review reveals a substantial relationship between a student’s misbehavior and his or her disability. This article originally appeared in SpecialEdConnection®.

Download: Printable PDF

A middle school student with ADHD is suspended for 12 days after getting into a fight in the cafeteria. The student’s IEP team conducts a manifestation determination review and concludes that the student’s problem behavior was a manifestation of his disability. What must the district do next?

Under the IDEA, if a student’s behavior is found to be unrelated to her disability, then the district may impose the same consequences as it would for a student without a disability. However, if an MDR reveals that the student’s misbehavior was caused by or had a direct and substantial relationship to the student’s disability or was the direct result of the district’s failure to implement the student’s IEP, then the district must take the steps outlined below.

1. Examine the student’s behavior. Conduct a functional behavioral assessment (unless the district conducted an FBA before the behavior that resulted in the disciplinary removal) and implement a behavioral intervention plan for the student.

If a BIP has already been developed, review it and modify it as necessary to address the student’s behavior. 34 CFR 300.530 (f).

Closely examine the student’s environment and disability-related needs during the FBA, recommended Anne Littlefield, a school attorney with Shipman & Goodwin LLP in Hartford, Conn.

“We’re looking for what triggers the behavior — the conditions that lead to the behavioral incident,” she said. Such triggers might include time of day, unstructured settings, or certain activities, she said. Consider: Is the student trying to get out of a non-preferred activity? Is there a sensory issue at play?

Then, determine what strategies and supports can be put in place to prevent the student from engaging in those behaviors, Littlefield said. Update the behavioral goals and objectives section of the student’s IEP to reflect the new plan. Continue Reading

**POSTPONED** RISSC March 2018 Conference


RISSC March 2018 Conference
Sponsored by Kent School and Co-Sponsored by the Connecticut Association of Independent Schools (CAIS)
March 2, 2018 from 8:00 AM – 3:00 PM
Kent School, 1 Macedonia Road, Kent, CT 06757

Shipman and Goodwin attorney Mark Ostrowski will join Doug Lyons from the Connecticut Association of Independent Schools (CAIS) and and Chris Duble from FC Church Insurance to present a 90 minute session focused on best practices following the Hotchkiss appeal at the March 2nd Regional Independent School Safety Committee (RISSC) Conference.  Presenters will share their thoughts and recommendations (including advice from United Educators) in response to the expansion of foreseeable risk as defined by the decision.

For a complete program agenda and registration information, visit: http://www.caisct.org/risscmar18.