Effective August 24, 2018, the Illinois Human Rights Act ("IHRA") is amended by Public Act 100-1066. Under the amended IHRA, complainants may opt out of the Illinois Department of Human Rights ("IDHR") investigation and commence a lawsuit in circuit court. To do so, complainants must submit, within 60 days after receipt of notice of the right to opt out, a written request seeking notice from the Director indicating that the Complainant has opted out of the investigation and may commence a civil action in the appropriate circuit court. This amendment may dramatically change Illinois employment law litigation. Plaintiff-side Illinois employment lawyers may choose to take advantage of the opt-out provision by quickly opting out of the IDHR investigation and filing employment lawsuits with jury demands in state court. Before the amendment, IDHR complainants were required to wait 365 days from the charge filing date or until the IDHR investigator completed her investigation, before they could file a lawsuit in court. With the long wait out of the way, the new opt-out provision may also influence plaintiff-side Illinois employment lawyers to file charges of discrimination first at the IDHR, rather than first at the EEOC. It will still be crucial for complaining parties to have their charges cross-filed with both the IDHR and the EEOC, and to perfect all federal law and state law employment discrimination claims, in order to preserve the right to obtain complete relief.
ADEA (Age Discrimination in Employment Act)
On August 20, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant-employer in a disparate impact age discrimination lawsuit filed under the Age Discrimination in Employment Act ("ADEA"). O'Brien, et al. v. Caterpillar, Inc., No. 17-2956 (7th Cir. 8/20/2018). This age discrimination lawsuit was filed by a group of retirement-eligible employees who refused to retire under a "liquidation plan," through which employees who agreed to retire would receive a pro rata share of funds that resulted from the company's elimination of certain unemployment benefits for laid-off employees. The plaintiffs alleged that the liquidation plan violates the ADEA because it has a disparate impact on older employees. The 7th Circuit held that although the liquidation plan has a disparate impact on older workers, it was justified by several reasonable factors other than age.
On July 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in an age and sex discrimination and retaliation lawsuit under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. Hamer v. Neighborhood Housing Services of Chicago, et al., No. 15-3764 (7th Cir. 7/30/2018). The plaintiff was passed over for a promotion in favor of a younger, male colleague. Believing that this adverse employment action constituted age and sex discrimination, she met with the Director of Human Resources, and informed her of her intention to file a charge of discrimination with the United States Equal Employment Opportunity Commission. Subsequent communications ensued between various managerial personnel regarding the non-promotion and related personnel issues in connection with the plaintiff, then employee, who was subsequently given an ultimatum to accept a demotion or resign her employment. She resigned, and filed an EEOC charge, followed by a federal lawsuit.
On April 26, 2018, the 7th Circuit held that the disparate impact provision of the Age Discrimination in Employment Act ("ADEA") protects both outside job applicants and current employees from employment practices that have a disparate impact on older workers. Kleber v. CareFusion Corporation, No. 17-1206 (7th Cir. 4/26/2018). The ADEA prohibits employment practices that discriminate intentionally against older workers as well as employment policies that are facially neutral but have a disparate impact on older workers. In this case, the 7th Circuit recognized a cause of action under the ADEA for disparate impact failure-to-hire, in the context of a hiring policy which limited the applicant pool for an attorney position to applicants with three to seven years (but no more than seven years) of legal experience.
On March 8, 2018, the 7th Circuit affirmed an order of summary judgment in favor the defendant in a lawsuit in which the plaintiff alleged that his former employer unlawfully discriminated against him on the basis of his age and national origin, as well as retaliated against him for complaining about a supervisor, in violation of the Age Discrimination in Employment Act ("ADEA") and Title VII of the Civil Rights Act of 1964 ("Title VII"), by failing to promote him to various positions and ultimately demoting him. Skiba v. Illinois Central Railroad Company, No. 17-2002 (7th Cir. 3/8/2018). To survive a motion for summary judgment on a retaliation claim, a plaintiff must offer evidence of: (1) statutorily protected activity; (2) materially adverse job action; and (3) a causal connection between the two. The 7th Circuit concluded that the plaintiff did not engage in any statutorily protected activity when he complained about a supervisor's harsh management style.
On August 14, 2017, the 7th Circuit reversed the district court's order of summary judgment in favor of the defendant employer in a federal lawsuit filed by a Chicago Public High School maintenance supervisor, in which he alleged that he was given an unsatisfactory rating that resulted in the loss of his employment, because of his age and in retaliation for his prior age discrimination lawsuit against the Board, of which he had informed his supervisor before she gave him the negative rating. Owens v. Chicago Board of Education, No. 16-3607 (7th Cir. 8/14/2017) The plaintiff alleged that he informed his supervisor that he had an age discrimination lawsuit pending against the Board, and that she then replied 'do you think you're going to keep your job working for the Chicago Public Schools and you're filing a lawsuit?'.
On July 26, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in an age discrimination lawsuit filed under the Age Discrimination in Employment Act ("ADEA"). Carson, et al. v. Lake County Indiana, No. 16-3665 (7th Cir. 7/26/2017). A group of rehired retirees who were fired filed the lawsuit alleging that the County had discriminated against them on the basis of their age in violation of the ADEA. The 7th Circuit concluded that there was no evidence that the County engaged in unlawful age discrimination. The key criterion that distinguished the terminated employees from all other County employees was not their age but rather their impermissible participation in a group health insurance plan supplement while they worked part-time, which necessitated the termination of their employment.
On July 13, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in an age discrimination and retaliation lawsuit. Lauth v. Covance, No. 16-2939 (7th Cir. July 13, 2017). The plaintiff claimed that the defendant terminated his employment because of his age and in retaliation for his EEOC Charges, in violation of the Age Discrimination in Employment Act ("ADEA"). The question on appeal was whether a triable issue of fact existed as to whether the defendant terminated the plaintiff because of his age or in retaliation for his protected activity. The 7th Circuit has discarded the distinction between direct and indirect methods of proof in employment discrimination cases, and has clarified that all evidence must be evaluated as a whole. The proper inquiry is whether a reasonable jury could determine, based on all the evidence, that the plaintiff's age or protected activity was the cause of his termination.
On January 13, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a wage discrimination lawsuit in which the plaintiff claimed that she was denied a pay increase and subjected to disparate pay on the basis of her age, sex and race, in violation of the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), and the Equal Pay Act ("EPA"). David v. Board of Trustees of Community College District No. 508, No. 15-2132 (7th Cir. 1/13/2017). She alleged that employees who were younger, non-African-American, or male were paid more than she was paid for equivalent work.
Here is a look back at 2016 7th Circuit employment law decisions, including significant trends and changes in employment law in the 7th Circuit, as well as a tally of decisions affirming and reversing summary judgments in employment law cases. Notably, in 2016, the 7th Circuit affirmed orders of summary judgment in 22 employment law cases, but reversed orders of summary judgment in only 5 employment law cases (10 calendar days remain, so the numbers may change). But as of this date the ratio is 4.4/1, i.e., 4.4 summary judgments were affirmed for every 1 summary judgment that was reversed. Put another way, of the 27 employment law summary judgments on appeal to the 7th Circuit in 2016, 81.5% were affirmed, while 18.5% were reversed. The 27 cases include employment discrimination, harassment, failure-to-accommodate, and retaliation claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act, Section 1981, the Illinois Human Rights Act, and Illinois common law.