On September 27, 2016, the Illinois Appellate Court, First District, ruled in favor of a job applicant who claimed that she was denied employment because she failed a credit check, in violation of the Employee Credit Privacy Act (the "Act"). Ohle v. Neiman Marcus Group, 2016 IL App (1st) 141994 (9/27/2016). The Act prohibits an employer from inquiring into a potential employee's credit history and refusing to hire or discriminating against a job applicant because of her or his credit history. The Act provides an exemption where a satisfactory credit history is an established bona fide occupational requirement of the job. There are seven exemptions. The defendant claimed the exemption that the position gave the employee access to personal and confidential customer information. Trial court agreed with the defendant that the position fell within the exemption, but the appellate court reversed.
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On September 19, 2016, the 7th Circuit remanded disparate treatment and disparate impact sex discrimination claims after a jury trial based on erroneous jury instructions and an unreliable physical-skills study. Ernst v. City of Chicago, No. 14-3783 & 15-2030 (7th Cir. 9/19/2016). This lawsuit was filed by a group of women who applied unsuccessfully to work as paramedics for the City of Chicago (the "City"). All five women were denied employment because they failed the City's physical-skills entrance exam. Title VII of the Civil Rights Act of 1964, as amended ("Title VII") prohibits two types of discrimination: (1) intentional discrimination based on a protected status such as gender, which is called disparate treatment; and (2) employment practices that have a disproportionately adverse impact on employees who belong to a protected class, even if the impact is unintended, which is called disparate impact.
Judge Rovner published an important dissenting opinion in Lord v. High Voltage Software, Inc., No. 13-3788 (7th Cir. 10/5/2016), in which the 7th Circuit affirmed the grant of summary judgment in favor of an employer in a same-sex sexual harassment and retaliation case. Judge Rovner dissented as to the majority decision affirming the grant of summary judgment on the retaliation claim, which essentially held that an employee cannot allege retaliation for reporting sexual harassment when the employer required him to report harassment immediately and he reported it only days later. In other words, if an employee fails to comply with employer-imposed reporting restrictions, the employer can terminate the employee for reporting the harassment with no recourse for the employee to Title VII retaliation protections. The holding, according to Judge Rovner, will encourage employers to establish unreasonable time and manner restrictions on the reporting of sexual harassment and place "handcuffs on Title VII retaliation claims, with the employers holding the keys."
On October 5, 2016, the 7th Circuit affirmed the district court's order granting summary judgment in favor of an employer in a same-sex sexual harassment lawsuit. Lord v. High Voltage Software, Inc., No. 13-3788 (7th Cir. 10/5/2016). The Plaintiff, a male employee, claimed that he was sexually harassed by a male coworker and fired in retaliation for complaining about it, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). The employer claimed that the conduct of which the plaintiff complained was not sexual harassment, and that it fired him for other reasons, including his failure to immediately report the conduct that was objectionable to him. The majority opinion agreed with the district court that the conduct complained of, which consisted of repeated unwelcome physical contact in personal areas of the body, was not based on the plaintiff's sex, male, and that he did not raise issue with the sincerity of the defendant's explanation for its termination of his employment.
On September 30, 2016, the Illinois Appellate Court, First District, affirmed an order of the circuit court that awarded $1 million to a former employee for breach of an employment agreement. Reed v. Getco, LLC, 2016 IL App (1st) 151801 (9/30/2016). The subject employment contract contained a unique provision: the employee agreed to not compete with the employer for six months after termination of his employment for any reason; and the employer agreed to pay the employee $1 million if his employment terminated for any reason, unless he violated the non-competition covenant (or any other term of the agreement). The agreement also gave the employer the right to modify the restrictive covenant in its "sole and absolute discretion;" but provided that no waiver or modification of any term of the agreement would be effective without a writing signed by the party against whom the modification is enforced. Six years after signing the agreement, the employee resigned. A week later, the employer sent him an email stating that the restricted (non-compete) period is zero months or is waived; and he would not receive any non-compete payments.
On September 19, 2016, the Illinois Appellate Court, Third District, affirmed the trial court's order granting summary judgment in a retaliatory discharge case. Seeman v. Wes Kochel, Inc., 2016 IL App (3d) 150640 (9/19/2016). The plaintiff alleged that he was fired because of his protected activity of service to a volunteer fire department because he was fired for tardiness due to responding to a fire call. Under Illinois law there is a common-law tort claim for retaliatory discharge, which is an exception to the doctrine of employment "at will." A plaintiff must allege that he or she was discharged in retaliation for his or her protected activities and that the discharge violates public policy. Examples of retaliatory discharge that contravened public policy include where an employee was fired for refusing to violate a statute or evade jury duty, engaging in statutorily protected union activities or whistleblower activities, and filing a workers' compensation claim. Retaliatory discharge claims have not been successful when only private interests are at stake.
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