Contractor Colleges Walk Bathroom Tightrope With Student-Employees

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By Jay-Anne B. Casuga

Colleges and universities should tread carefully when implementing workplace restroom policies. There is a risk that transgender student workers could file discrimination complaints with the Labor Department’s Office of Federal Contract Compliance Programs.

The issue hinges on an open question as to whether the OFCCP would view students who work for their college or university as covered employees protected by agency’s anti-bias rules, practitioners told Bloomberg BNA.

“While the higher education community has sought specific guidance on this for years, the OFCCP has not taken an official position,” Matthew J. Camardella, a management attorney with Jackson Lewis in Melville, N.Y., told Bloomberg BNA. Camardella is a co-chair of the firm’s Affirmative Action & OFCCP Defense Group.

The Trump administration recently rescinded Obama-era federal guidance—under Title IX of the 1972 Education Amendments Act—that said public schools must allow transgender students to use bathrooms and locker rooms consistent with their gender identity.

That rescission, however, had no effect on rules enforced by the OFCCP. Those rules, which implement Executive Order 11,246, prohibit workplace discrimination based on a number of protected characteristics. Sexual orientation and transgender status were added to the rules during the Obama administration. EO 11,246 was signed by President Lyndon Johnson in September 1965.

The OFCCP requires government contractors, including educational institutions with federal contracts, to let applicants and employees use facilities consistent with their gender identity.

Are Students Employees Under OFCCP Rules?

Whether or not student workers are employees has been a hot topic in the federal labor and employment law arena in recent years.

The National Labor Relations Board, for instance, issued a ruling in August that graduate research and teaching assistants at private universities can be considered employees under federal labor law.

But what about EO 11,246?

The DOL declined to comment. But the OFCCP in a question-and-answer guidance says the order applies to “certain students who are employed by educational institutions,” and that it follows principles under Title VII of the 1964 Civil Rights Act to determine whether a discrimination claim “relates to a student’s status as an employee.”

It doesn’t specify who those “certain students” are.

No Official Position

The agency generally applies a multifactor test, established in 1992 by the U.S. Supreme Court, to determine whether someone is an employee under the executive order, Camardella said.

The OFCCP memorialized this approach in guidance about employer-employee relationships. Known as the Darden test, the analysis focuses on whether an entity controls the manner and means of an individual’s work.

In the education context, student workers are arguably under the control of a college or university.

However, there is not yet a consistent understanding as to whether those students would be considered employees, especially if students receive work-study tuition benefits or stipends from the school, Jody Shipper, a higher education consultant and member of the National Association of College and University Attorneys, told Bloomberg BNA.

Under those circumstances, students might not be seen as employees.

But what if a student works for the university without that type of financial arrangement?

“Then we have the open legal question,” Shipper said. “It’s very murky.”

Camardella said the bottom line is that the OFCCP will take a fact-specific, case-by-case approach to determine whether a student will be considered an employee under the executive order.

Low Number of OFCCP College Audits, Investigations

There are approximately 7,200 post-secondary institutions in the country, according to the latest statistics cited by a Department of Education spokesman. Of those, 4,726 are degree-granting institutions.

The OFCCP’s anti-discrimination rules apply to only those institutions that have federal contracts or subcontracts worth $10,000 or more.

Most of the OFCCP’s enforcement activities involve scheduled audits of government contractors. As of March 2017, the agency has completed about 12,670 audits since fiscal year 2013, according to its enforcement data.

Of the contractor facilities audited, less than 1 percent (about 52) were educational institutions, a Bloomberg BNA analysis of that data shows.

In addition to audits, the OFCCP can conduct investigations based on complaints it receives from employees or applicants.

The agency has completed about 683 complaint investigations since fiscal year 2013. About 3.7 percent of those investigations (25) stemmed from complaints against educational institutions.

Student-Employees Could File Bias Complaints

Let’s assume that a college or university is a covered federal contractor under the OFCCP’s jurisdiction and that some students are deemed by the agency to be employees under the executive order.

What could happen if a college or university enacts a policy requiring students to use restrooms and locker rooms consistent with their biological sex at birth?

In that hypothetical scenario, both Shipper and Camardella agreed that the OFCCP can, and probably will, accept transgender discrimination complaints from student-employees, on either an individual or a class action basis.

As to whether the OFCCP actually has been accepting complaints alleging sexual orientation or transgender discrimination, a recent agency administrative action against Accuweather Inc. indicates that it does.

Technically, the OFCCP is supposed to refer individual discrimination complaints to the Equal Employment Opportunity Commission if the allegations would have fallen under the EEOC’s jurisdiction.

The EEOC also enforces nondiscrimination requirements, but encompassing a broader pool of employers. It’s an open question whether Title VII, which is enforced by the EEOC, provides workplace protections based on sexual orientation and gender identity.

“In practice in recent years, we’ve not seen consistent evidence of that kind of work sharing taking place,” Camardella said. The OFCCP seems to be keeping all the complaints it receives, whether individual or class-based, he said.

Relief Would Be Access, Not Money Damages

Continuing with the hypothetical: If the OFCCP conducts a complaint investigation and finds transgender discrimination, the agency can’t obtain monetary damages on behalf of the student-employee, Camardella said.

The relief sought by the OFCCP would be injunctive in nature. That is, the agency would require the college or university to provide the transgender student-employees access to the bathroom consistent with their gender identity.

If the college refused, then the OFCCP could file an administrative action and seek an order canceling the institution’s federal contracts and banning it from future contracts.

Contractor debarment based on OFCCP action is rare, though, according to a recent Bloomberg BNA analysis.

New Leadership Could Change Course

Of course, the OFCCP’s enforcement of bathroom protections could change once new leadership is installed by the Trump administration, the practitioners said.

President Donald Trump in late January upheld the Obama-era executive order that served as the basis for the OFCCP’s transgender anti-discrimination rule.

Gender identity will continue to be a protected status absent a successful legal challenge to the OFCCP’s rule or the executive order underlying it, Shipper said. The president could also later decide to issue a new order or withdraw the existing one, she said.

But an argument can be made that while transgender discrimination is prohibited within the four corners of EO 11,246, that protection doesn’t necessarily extend to the issue of bathroom accessibility, Camardella said.

The OFCCP under new leadership “could very well take that position,” he said.

“Where the rubber meets the road is how the OFCCP is going to enforce it,” Camardella said. “That’s where we might see a change.”

For now, he said his advice to colleges would be to maintain the status quo.

If an educational institution has a restroom policy, regardless of what the policy says, leave it as-is.

“To make any changes when the legal landscape is so uncertain doesn’t make a lot of sense as it will likely draw unwanted attention,” Camardella said.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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