On July 28, 2016, the 7th Circuit affirmed the dismissal of a sexual orientation discrimination claim for failure to state a cause of action under Title VII, and held that employment discrimination based on sexual orientation or sexual preference is not covered by Title VII's prohibition against discrimination on the basis of sex. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. 7/28/2016). A lesbian part-time professor filed this case under Title VII alleging that the college denied her full-time employment on the basis of her sexual orientation. The college filed a motion to dismiss on the ground that sexual orientation is not a protected classification under Title VII. The district court agreed. In a lengthy opinion, the 7th Circuit clarified that sexual orientation discrimination is outside of the scope of and therefore not unlawful under Title VII. The 7th Circuit's decision addresses and rejects the (opposite) position advanced by the EEOC, that sexual orientation discrimination constitutes unlawful sex discrimination under Title VII.
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On July 21, 2016, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a lawsuit in which a federal employee alleged that his lack of promotion or salary increase was discriminatory on the basis of his race and sex, that he was subjected to unlawful retaliation for complaining about it, and that he was subjected to a hostile work environment. Poullard v. McDonald, Secretary, U.S. Department of Veterans Affairs, No. 15-1962 (7th Cir. 7/21/2016). In the Title VII disparate-pay context, the question is whether a plaintiff may show equal work for unequal pay based on his or her protected class. The federal employee's pay discrimination claim failed because he did not identify a similarly situated employee outside of his protected classes who was paid more for the same work. It was difficult for the plaintiff to argue that his supervisor was similarly situated, especially where the supervisor had more work experience and a higher grade level.
On July 22, 2016, the 7th Circuit affirmed an order of summary judgment on claims alleged by a teacher that she was not promoted to various positions because of her gender, race and age, in violation of Title VII, Section 1981, and the ADEA. Riley v. Elkhart Community Schools, No. 15-3166 (7th Cir. 7/22/2016). The district court correctly held that the plaintiff failed to produce sufficient evidence for any of her claims to survive summary judgment. To proceed to trial on a failure to promote claim, a plaintiff must produce sufficient direct or circumstantial evidence that the employer's promotion decisions were intentionally discriminatory or make an indirect case of employment discrimination under the burden-shifting method. To demonstrate a prima facie case of failure to promote, a plaintiff must produce evidence showing that: (1) she was a member of a protected class; (2) she was qualified for the position sought; (3) she was rejected for the position; and (4) the employer promoted someone outside of the protected class who was not better qualified for the position.
On July 6, 2016, the 7th Circuit affirmed an order of summary judgment entered in favor of the defendant in a disability discrimination lawsuit in which an employee sued her former employer under the Rehabilitation Act, contending that she was discharged on account of an anxiety disorder and related disabilities. Felix v. Wisconsin Department of Transportation, No. 15-2047 (7th Cir. 7/6/2016). The district court entered summary judgment against the plaintiff on the ground that the undisputed facts demonstrated that she was discharged not solely because of her disabilities, but instead based on workplace behavior that indicated to the employer that she posed a safety risk to herself and others.
On July 14, 2016, the 7th Circuit reversed the dismissal of a Title VII retaliation claim. Hatcher v. Board of Trustees of Southern Illinois University, et al., No. 15-1599 (7th Cir. 7/14/2016). The plaintiff, a university professor, claimed that she was denied tenure on the basis of her gender and in retaliation for filing a charge of gender discrimination against the university with the EEOC. The university contended that it denied her tenure because she allegedly produced insufficient scholarship. The district court dismissed the retaliation claim for failure to state a cause of action. The 7th Circuit held that her complaint stated a plausible Title VII retaliation claim for filing her charge with the EEOC.
On June 28, 2016, the 7th Circuit affirmed a judgment entered on a jury verdict in favor of the plaintiff in a disability discrimination lawsuit. Brown v. Smith, No. 15-1114 (7th Cir. 6/28/2016). The plaintiff, a transportation supervisor, sued his former employer, alleging that his employment was terminated on account of his disability--diabetes--in violation of the Americans with Disabilities Act ("ADA"). The ADA prohibits employers from discriminating against a qualified individual on the basis of his or her disability. An employee is qualified if he or she can perform the essential functions of his or her employment position with or without reasonable accommodation. The employer's termination notice stated that the reason for the plaintiff's termination was his inability to obtain a commercial driver's license ("CDL"). This appeal involved the issue of whether possession of a CDL--which the plaintiff was unable to obtain due his diabetic condition--was an essential function of his job. This was a question of fact for the jury, which concluded that having a CDL was not an essential function of the plaintiff's job.
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