Civil Rights Division of DOJ Explains Title IX Protects Gender Identity and Sexual Orientation Status, Bringing High-Stakes Showdown with Contrary State Laws One Step Closer

The Department of Justice’s Civil Rights Division released a March 26, 2021 memorandum explaining the Division’s position that Title IX prohibits discrimination on the basis of transgender and sexual orientation status.  In so concluding, the Division seeks to expand to Title IX the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., which held that Title VII’s definition of “sex” prohibited discrimination on the basis of sexual orientation and gender identity in the employment context.  

 

The Division characterizes its advice as a supposed “starting point” for federal agencies.  But it is more than that—the DOJ “is charged with coordination of the implementation and enforcement of Title IX by Executive agencies.” As such, the Division’s guidance will be highly instructive to federal agencies—most (if not all) are likely to follow suit—as well as the courts. Continue reading “Civil Rights Division of DOJ Explains Title IX Protects Gender Identity and Sexual Orientation Status, Bringing High-Stakes Showdown with Contrary State Laws One Step Closer”

Another Hint? Interpreting How the Biden Administration Will Approach Title IX Regulations

On April 6, the Department of Education’s Office for Civil Rights (OCR) issued a new letter to students, educators, and stakeholders indicating the process that the Biden Administration will be undertaking on the issues surrounding the Title IX regulations. While light on details, the letter does provide a roadmap for OCR’s next steps and what colleges and universities can expect in the Title IX regulatory arena in the near future. Continue reading “Another Hint? Interpreting How the Biden Administration Will Approach Title IX Regulations”

Arkansas Passes Law Prohibiting Biologically Male Students from Participating in Female Sports

Arkansas Governor Asa Hutchinson signed into law the Fairness in Women’s Sports Act (“FWSA”) on March 25, 2021.  Arkansas now joins Idaho (2020—enjoined by court order) and Mississippi (effective July 1, 2021) in passing a law prohibiting biologically male students from participating in female sports. (Click here for our coverage of those laws).

Summary of the FWSA

Who: The FWSA applies to public K-12 schools, open-enrollment public charter schools, and public 2-year and 4-year institutions of higher learning.  It also applies to Continue reading “Arkansas Passes Law Prohibiting Biologically Male Students from Participating in Female Sports”

The Higher Education Provisions of The American Rescue Plan Act and What to Expect Next

On March 10, 2021, Congress passed the Biden Administration’s American Rescue Plan Act of 2021 (ARPA). Building on previous Congressional relief bills – the CARES Act and the Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA) – the ARPA commits significant resources to colleges and universities. In fact, the ARPA directs more money to institutions, in overall totals, than either of the CARES Act or the CRRSAA. Continue reading “The Higher Education Provisions of The American Rescue Plan Act and What to Expect Next”

New California Supplemental Paid Sick Leave law

California state legislature passed SB 95, which creates a new and more expansive supplemental paid sick leave law for COVID-related leaves.  The bill applies retroactively to January 1, 2021, when the previous supplemental paid sick leave law expired. This is classified as emergency legislation, so it will go into effect 10 days after being signed by the governor, which he is expected to do.

There are some key differences between the new law and the prior law. The terms of the new law are summarized below; where they change from the prior law, they are noted.

  • The law applies to public or private employers with 25 or more employees.  (Prior law applied to those with 500 or more nationwide.)
  • Applies to both employees who cannot work or telework for one of the qualifying reasons.  (Prior law did not apply to remote employees or those who could telework.)
  • Applies for the following seven qualifying reasons:
    1. The worker is subject to a quarantine or isolation “period” related to COVID-19 as defined by an order or guidelines by the state, the CDC, or local public health authorities).  (Some of these quarantine/isolation periods conflict, so the law states that this applies to the shortest one in the event of such a conflict.)
    2. The worker is advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19;
    3. The employee is attending an appointment to receive a vaccine for protection against contracting COVID-19;
    4. The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work;
    5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    6. The employee is caring for a family member (minor or adult child, parent, spouse, domestic partner, grandparent, grandchild, or sibling) who is subject to a quarantine or isolation period, or who has been advised to self-quarantine; or
    7. The employee is caring for a child (regardless of age) whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  • The law provides for 80 hours of paid sick leave for full time employees (a formula is available for calculating the amount of available leave for employees who work fewer hours or an irregular schedule) who take leave for one of the qualifying reasons above.  This is a new bank of leave, so if an employee took leave under the prior supplemental paid sick leave law, they have not exhausted it for purposes of this one—they get a full 80 hours.  
  • Employees must exhaust this leave first before using other paid leave, such as regular paid sick leave or PTO.  However, this leave may apply toward any paid leave provided by employers under the Cal/OSHA emergency temporary standards, which require pay continuation during a mandatory quarantine period following a workplace exposure.
  • Paid sick leave must be itemized on the employee’s pay stub, separate from the other paid sick leave bank that is already required to be included.
  • If an employer provided supplemental paid sick leave or paid leave for one of the qualified reasons above between January 1, 2021 and the date this law goes into effect (for example, paid employees to stay home during a quarantine period under the Cal/OSHA emergency temporary standards or under an employer’s own policy), that may be counted against this new bank of leave.  However, they may not do this if the employer required an employee to use their normal paid sick leave.
  • If an employee took leave for a qualifying reason between January 1, 20201 and now but was not paid, an employer must make a retroactive payment upon the oral or written request of an employee.
  • The Labor Commissioner will create and disseminate a model notice, which must be provided to employees.

The Bill expires on September 30, 2021, though employees who are on leave at the time of the expiration must be allowed to complete their paid leave.

Full language of the bill can be found here. 

The 2019 Borrower Defense Rule Survives Summary Judgment (Mostly) Intact

On March 17, 2021, Southern District of New York Judge Lorna G. Schofield ruled that most of the 2019 Borrower Defense to Repayment Rule would survive cross-motions for summary judgement. On one issue, however, Judge Schofield ruled for the Plaintiff, the New York Legal Assistance Group (NYLAG), finding that the 2019 Rule’s three-year statute of limitations on defensive claims was not a logical outgrowth of and deviated too sharply from the 2018 Notice of Proposed Rulemaking. Continue reading “The 2019 Borrower Defense Rule Survives Summary Judgment (Mostly) Intact”

Deadline Approaching: California Employers Must Report Compensation Data by March 31st

On September 30, 2020, California Governor, Gavin Newsom, signed SB 973 into law. By March 31, 2021, private California employers with 100 or more employees and who are subject to EEO-1 reporting must submit a “pay data report” to the California Department of Fair Employment and Housing (DFEH).

What Are Employers Required to Report?

The pay data report must include a breakdown of employees by sex, race and ethnicity in 10 job categories. Specifically, the categories include: executive or senior level officials or managers; first or mid-level officials and managers; professionals; technicians; sales workers; administrative support workers; craft workers; operatives; laborers and helpers; and service workers. The pay data report must also include a delineation of employee compensation in 11 identified pay bands ranging from “less than $19,239” to “more than $208,000” based on W-2 wages. The report must include the number of employees in each pay band, along with information on sex, race and ethnicity and total number of hours worked.

What Is California Going to Use the Data for?

The intent of the California Legislature is clear by its legislative findings—the Legislature believes a discriminatory pay gap persists despite other recent legislation and now requires additional attention from the state. DFEH will review the pay data reported to ferret out discrimination in pay and hold employers accountable for differences in pay that are not authorized by law.

Mississippi Enacts Law Banning Transgender Athletes from Competing on Female Sports Teams

Mississippi Governor Tate Reeves signed a bill today banning transgender athletes from competing on girls or women’s sports teams.  Governor Reeves cited President Biden’s January 20, 2021 Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (covered here) as a primary reason for the law being necessary in Mississippi.

The law requires interscholastic and intramural sports to designate participation eligibility based on student biological status. Biologically male individuals are then banned from participating in those sports designated as being for “females, women, or girls.”  The law applies to public K-12 schools, schools that are members of Mississippi High School Activities Association, public institutions of higher education, and higher education institutions belonging to NCAA, NAIA or NJCCA.

The law also provides a private cause of action.  As such, a student “deprived of an athletic opportunity or suffers any direct or indirect harm as a result of a violation” may bring a legal claim against the school. The law does not specify the types of relief available for such an action.

The law is set to go into effect on July 1, 2021.  We expect the ACLU or similar group to challenge the law in federal court and try to enjoin the law from going into effect.  Idaho passed a similar law last year, which is currently blocked from going into effect by federal court order.

FSA Delays Annual Student Loan Acknowledgment Requirement

On March 8, 2021, the Federal Student Aid office (“FSA”) of the U.S. Department of Education (“Department”) published an Electronic Announcement that delays the implementation date for the Annual Student Loan Acknowledgment. In a November 21, 2019 Electronic Announcement, the Department had previously notified schools about a change to the Master Promissory Note (MPN) confirmation process.

Pursuant to the new process, student and parent borrowers are required to view how much they currently owe in federal student loans, and to acknowledge that they have seen this amount before a school can make the first disbursement of the first Direct Loan that a student or parent borrower receives for each new award year.

The Annual Student Loan Acknowledgement process will continue to be available on StudentAid.gov. However, borrower completion of the Annual Student Loan Acknowledgement prior to disbursement will not be required for the 2021–22 Award Year.

At this time, all processing related to the Annual Student Loan Acknowledgement will continue under existing business rules. Schools will continue to receive information about a borrower’s completion of the Annual Student Loan Acknowledgement process on StudentAid.gov.

Please see the November 2019 Electronic Announcement for more information about the Annual Student Loan Acknowledgement process and the technical requirements.

President Biden Issues Executive Order Directing U.S. Department of Education to Reassess Title IX Rules

On March 8, 2021, the Biden Administration published an Executive Order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” In short, the EO requires the U.S. Department of Education to reassess how it directs college campuses to investigate sexual violence – specifically, the 2020 Title IX Rule, 85 FR 30026 – as well as other regulations related to Title IX. Continue reading “President Biden Issues Executive Order Directing U.S. Department of Education to Reassess Title IX Rules”