The United States Equal Employment Opportunity Commission ("EEOC") has established new procedures for its investigation of EEOC charges. Under the new procedures, a charging party may obtain a respondent's position statement from the EEOC upon request, and file a response to the position statement within 20 days after receipt. The new procedures apply to position statements requested by the EEOC on or after January 1, 2016. This is an important employment law development. Previously, a charging party was not entitled to obtain a respondent's position statement until the EEOC closed its investigation, and then, only through a Freedom of Information Act request. There was no opportunity for a charging party to review or respond to a position statement during the investigation. The new procedures significantly improve the EEOC investigative process by facilitating a meaningful exchange of information and allowing investigators to consider responses.
ADA (Americans with Disabilities Act)
On January 4, 2016, the 7th Circuit affirmed a judgment on a jury verdict in favor of an employer in an Americans with Disabilities Act ("ADA") lawsuit filed on behalf of an employee by the U.S. Equal Employment Opportunity Commission ("EEOC"). Equal Employment Opportunity Commission v. AutoZone, Inc., No. 15-1753 (7th Cir., 1/4/2016). The EEOC alleged that the employer failed to accommodate the employee's disability (lifting restriction) and terminated the employee because of her disability, in violation of the ADA. After a five-day trial, the jury returned a verdict in favor of the employer, finding that the employee was not a qualified individual with a disability at the time that her employment was terminated.
On December 28, 2015, the 7th Circuit reversed the dismissal of an employment discrimination lawsuit. Tate v. SCR Medical Transportation, No. 15-1447 (7th Cir., 12/28/2015). The pro se plaintiff had alleged that the defendant discriminated against him on the basis of his sex and disability, and retaliated against him for complaining about discrimination. The district court dismissed the suit (without allowing the plaintiff to amend the complaint) on the ground that the complaint failed to state a claim because it lacked specificity. The 7th Circuit held that the complaint satisfied the "undemanding standard" for the plaintiff's Title VII employment discrimination case, in which he had adequately alleged sexual harassment, discrimination on the basis of sex, and retaliation for engaging in protected activity. Indeed, a complaint of sex discrimination must only allege that the employer took a specific adverse employment action against the plaintiff on the basis of her or his sex.
On December 21, 2015, the 7th Circuit affirmed an order summary judgment in favor of the defendant entered by the district court in a Title VII and ADA lawsuit in which the plaintiff alleged that her employer discharged her from employment because of her disability, race and gender, as well as in retaliation for filing an EEOC Charge and a worker's compensation claim. Carothers v. County of Cook et al., No. 15-1915 (7th Cir., 12/21/2015). The plaintiff alleged disability discrimination in violation of the Americans with Disabilities Act ("ADA"), as well as race discrimination, sex discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). To establish a valid claim for disability discrimination under the ADA, a plaintiff must demonstrate that: (1) she is disabled within the meaning of the ADA; (2) she is able to perform the essential functions of her job with or without reasonable accommodation; and (3) the employer took adverse job action against her on the basis of her disability.
On December 3, 2015, the 7th Circuit affirmed the entry of summary judgment in favor of the defendant employer in an employment discrimination action filed by an employee under the Americans with Disabilities Act ("ADA"), in which the employee claimed that the employer violated the ADA by failing to provide him with a reasonable accommodation for his disability. Dunderdale v. United Airlines, No. 14-2911 (7th Cir., 12/3/2015). To establish a failure to accommodate claim under the ADA, an employee must demonstrate that: (1) she is a qualified individual with a disability; (2) the employer was aware of her disability; and (3) the employer failed to reasonably accommodate her disability. There were two issues in this case: (1) whether the plaintiff was a qualified individual with a disability; and (2) whether the employer failed to reasonably accommodate his disability.
On November 25, 2015, the 7th Circuit affirmed an order of summary judgment for the defendants in a lawsuit in which a prison inmate alleged that he was terminated from his prison job on account of a disability, in violation of the Americans with Disabilities Act. Neisler v. Tuckwell, et al., No. 15-1804 (7th Cir., 11/25/2015). The plaintiff brought his claim under Title II of the ADA. However, Title II does not apply to a prisoner's claim of employment discrimination in a prison job. Title II of the ADA does not cover a prisoner's claim that he suffered workplace discrimination on the basis of a disability. Title II provides that a public entity may not exclude a qualified individual with a disability from participating in or receiving benefits of services, programs, or activities or otherwise subject the individual to discrimination. It does not apply to claims of employment discrimination.
On October 26, 2015, the U.S. Court of Appeals for the 7th Circuit affirmed an order of summary judgment in a disability discrimination and failure to accommodate lawsuit brought under the Americans with Disabilities Act ("ADA"). Hooper v. Proctor Health Care Inc., No. 14-2344 (7th Cir., 10/26/2015). The employer terminated the employee, an M.D., after he was cleared to return to work but did not do so, despite warning. The employee filed suit against the employer under the ADA, alleging that the employer discriminated against him on the basis of disability by terminating his employment, and failed to provide him with a reasonable accommodation for his disability. However, his federal complaint did not allege any facts sufficient to put the employer on notice that he was pursuing a failure to accommodate claim, and, moreover, he did not need any accommodation. In addition, he did not present enough evidence to raise an inference of disability discrimination.
On October 15, 2015, the U.S. Court of Appeals for the 7th Circuit affirmed an order of summary judgment in a lawsuit in which a terminated employee alleged age and disability discrimination under the ADEA and ADA as well as retaliation under the FMLA. Woods v. City of Berwyn, No. 13-3766 (7th Cir., 10-15-2015). The former employee, a Fire Department Lieutenant, filed a complaint in federal court in which he alleged employment discrimination and retaliation under the cat's paw theory of liability, which applies in an employment discrimination case when a biased subordinate who lacks decision-making power uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action. Under the cat's paw theory, the discriminatory animus of the non-decision-maker must cause the adverse employment decision. The decision-maker's exercise of her own judgment alone does not break causation. However, if an unbiased decision-maker conducts an independent investigation of the information supplied by the biased employee, and, based on the investigation, determines that the adverse action is justified, then there is no causation.
On October 6, 2015, the 7th Circuit reversed an order of summary judgment on USERRA and ADA claims brought by a member of the armed services, who alleged that her employer unlawfully discharged her on the basis of her military service and disability, PTSD. Arroyo v. Volvo Group North America, LLC, No. 14-3618 (7th Cir. 10/6/2015). The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination against members of the armed services. It provides that a person who is a member of a uniformed service shall not be denied retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership. The Act also provides that discrimination exists where an employee's armed service membership was a motivating factor in the adverse employment action, unless the employer can prove that it would have taken the same adverse action in the absence of such membership. If a plaintiff makes out a prima facie case by showing that her membership was a motivating factor, the burden of proof shifts to the employer to prove that it would have taken the same action regardless. The motivating factor standard can be satisfied with circumstantial evidence.
On August 14, 2015, the 7th Circuit held that an employer violated the Americans with Disabilities Act by ordering an employee to submit to a fitness-for-duty medical examination as a condition of employment. Wright v. Illinois Department of Children and Family Services, Nos. 13-1552 & 13-1553 (7th Cir. 8/14/2015). Under the ADA, it is unlawful for an employer to require an employee to submit to a medical exam unless it is consistent with business necessity and job-related. The employer must have a reasonable belief, based on pre-exam objective evidence, that a medical condition will impair an employee's ability to perform the essential functions of his or her job, or that the employee will pose a threat due to the medical condition. This is a very high standard for the employer--it essentially must show that the exam is vital to its business. In Wright, the employer failed to establish that the exam was consistent with business necessity and job related because: (1) the employer had inconsistently applied its evaluation procedures; (2) the employee did not pose a risk; and (3) the exam was unrelated to the employer's actual concerns about the employee.