Ohio State STEM Student Seeks Sixth Cir. Recognition as Employee

Appellate arguments Thursday over a former Ohio State University graduate student’s bid to revive claims that her adviser sexually harassed her will explore whether students are also employees of their schools.

A ruling by the US Court of Appeals for the Sixth Circuit should clarify when students who perform work as part of their studies are covered by federal job discrimination law. The answer is significant, because Title VII of the 1964 Civil Rights Act generally sets a lower bar for employer liability and provides broader remedies than federal civil rights laws protecting students.

Meng Huang says a lower court wrongly rejected her Title VII quid pro quo sexual harassment claim without a trial. The professor of engineering who recruited her for the university’s Center for Automotive Research Ph.D. program when he visited Shanghai in 2014—and immediately started harassing her, she says—controlled her research and studies. That made Ohio State her employer, Huang says.

But according to the university, the lower court properly found that she was a student during the period of alleged harassment and correctly granted summary judgment for the school. That was based on the offer letter Huang received, which made her status as a student clear. Huang’s status changed from a graduate fellow to a graduate research assistant in late summer 2017, and it wasn’t until then that she became an employee for Title VII purposes, Ohio State says.

The professor denies Huang’s allegations and an investigation found them unsubstantiated, according to the Columbus, Ohio, school.

Stakes Are High

A Sixth Circuit affirmance would send the message that students have a rigorous and heavy burden just to get to trial, Alok Nadig of Sanford Heisler Sharp LLP told Bloomberg Law.

That would have “very broad implications” for the student-employee issue, Nadig said. It “could have a very negative ripple effect” both within and outside of the Sixth Circuit, he said.

In the context of sexual harassment litigation, for example, the test for proving a claim under Title IX of the 1972 Education Amendments, which protects students, is more rigorous than the standard under the employee-shielding Title VII, Nadig said. And they may not be able to recover money damages for emotional distress under Title IX but can under Title VII, he said.

Emotional distress damages can be hundreds of thousands of dollars in some cases, and such damages may be the only significant recovery a student might get for sexual harassment, Nadig said. If those damages are unavailable, students whose work benefits their school may not have much incentive to sue or may have trouble finding a lawyer to take their case, Nadig said.

It can therefore be much more difficult to prove a Title IX claim than one under Title VII, or Title VI, which protects students from race and other forms of discrimination, Alexandra Z. Brodsky of Public Justice said.

Public Justice and other civil rights groups, are backing Huang on appeal.

In sexual harassment cases, employers are liable for abuse by a co-worker if they knew or should have known and negligently failed to prevent or correct it, and they’re typically strictly liable for abuse by a supervisor, Public Justice said in its amicus brief. But under Title IX, a university must be shown to have possessed actual knowledge of sexual harassment and to have responded to it with deliberate indifference. And at least some Title IX cases require proof that harassment was both severe “and” pervasive, the Washington-based group said. Title VII only requires a showing of severe “or” pervasive harassment.

The student-employee issue is important because universities need to know who is an employee and who is a student, and students need to know what will be expected of them, Edward M. Cramp of Duane Morris LLP said. The implications are significant as well, he said.

Greater Title VII protections in this context would mean there could be “whole classes of workers who universities formerly thought of as students,” Cramp said. Schools generally aren’t set up to add thousands of people to the payroll, he said.

Who Controls, Benefits?

The science, technology, engineering and math area is “one of the clearest examples” where students work for their schools, Brodsky said. Like Huang, they conduct research in a lab that furthers the university’s interests and that often serves their personal interests by providing information they can use in their dissertation, she said.

Those functions often overlap for STEM and other graduate students and can’t be disentangled, Brodsky said.

Determining when a student is also an employee comes down to the educational institution’s ability to control the work, Nadig said.

The Sixth Circuit applies the common-law agency test, which lays out various factors for courts to consider, he said. These include the work location, whether it comes with pay or benefits, and who sets the hours and provides any needed tools or equipment, the attorney said.

Courts also look to whether the work furthers the business or academic interests of the school, Nadig said.

Cramp said the question is “who’s really benefiting from the work,” the school or the student? It also matters what the parties said about the relationship when forming it, he said.

“Did the student know their enrollment status or were they told that they would be a student?” Cramp said. Universities and colleges should be clear on a student’s status, and say it in writing, he said.

Pay Factor, Outlook

Huang says the district court miscast and discounted the importance of stipends she received, which help show she really was an employee.

Every case is different, because determining who controls the work is a fact-intensive, multi-factor inquiry, Nadig said. But whether a student is compensated can be crucial, he said.

Brodsky agreed. Courts sometimes put significant weight on pay, but it isn’t dispositive, she said.

Cramp said he believes schools need to be careful when it comes to stipends.

“Once you start paying money, no matter what you call it, it starts looking like work,” Cramp said. If they do that, they have to be careful that they’re not crossing the threshold into employment, he said.

“In education generally, it seems like institutions stumble into these things,” Cramp said. They can do so thinking they’re treated different than other employers. “Sometimes they are, but most of the time they aren’t,” he said.

Judges Raymond M. Kethledge, Chad A. Readler, and Rachel S. Bloomekatz will hear the appeal.

Obermayer Rebmann Maxwell & Hippel LLP represents Huang. Plunkett Cooney PC represents Ohio State.

The case is Huang v. Ohio State Univ., 6th Cir., No. 23-03469, oral argument 3/21/24.