U.S. District Court, Northern District of Illinois

7th Circuit Restates the Legal Standard for Workplace Harassment

On February 20, 2019, the U.S. Court of Appeals for the Seventh Circuit reversed the district court's grant of summary judgment in favor of an employer in a Title VII racial harassment lawsuit, in which the employee's immediate supervisor made racial epithets directly to the employee.  Gates v. Board of Education Of The City of Chicago, No. 17-3143 (7th Cir. Feb. 20, 2019).  The plaintiff's supervisor used the N-word twice and threatened to write up his "black ass."  The district court applied the wrong legal standard for hostile work environment claims, erroneously stating that "the workplace that is actionable is one that is hellish."  However, "[h]ellish is not the standard a plaintiff must satisfy to prevail on a hostile work environment claim."

7th Circuit Affirms Summary Judgment for Employer on Title VII Race and National Origin Discrimination and Retaliation Claims

On January 29, 2019, the U.S. Court of Appeals for the Seventh Circuit affirmed an order of summary judgment in favor of a defendant-employer in a lawsuit alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Illinois Human Rights Act ("IHRA"), in which the plaintiff-employee claimed that the employer failed to promote, disciplined, and demoted him because of his race and national origin, and in retaliation for his previous internal complaints of employment discrimination and workplace harassment.  Cervantes v. Ardagh Group, No. 17-3536 (7th Cir. Jan. 29, 2019).  His discrimination claims failed because he did not exhaust his administrative remedies.  His retaliation claim failed because he did not engage in protected activity, and there was no evidence of any causal connection between any protected activity and the adverse employment actions.

7th Circuit Holds that ADEA Protections Against Disparate Impact Age Discrimination Do Not Extend to Outside Job Applicants

On January 23, 2019, the Seventh Circuit Court of Appeals held that the protections against disparate impact age discrimination under the Age Discrimination in Employment Act ("ADEA") do not extend to outside job applicants.  Kleber v. Carefusion Corp., No. 17-1206 (7th Cir. Jan. 23, 2019).  This age discrimination case was filed by a 58-year-old attorney who applied for and was denied a position as an in-house attorney, which was given to a 29-year-old applicant.  The job description required 3-7 years, but no more than 7 years, of legal experience.  Section 4(a)(2) of the ADEA makes it unlawful for an employer to "limit, segregate or classify employees based on age" in such a way that results in an adverse effect on their "status as an employee."  The plain statutory language of the ADEA warrants the conclusion that its protections against disparate impact age discrimination are limited to employees.

7th Circuit Affirms Summary Judgment on ADEA Disparate Impact Claim

On October 11, 2018, the 7th Circuit affirmed an order of the district court that granted the employer-defendant's motion for summary judgment on a disparate-impact claim under the Age Discrimination in Employment Act ("ADEA").  Dayton v. Oakton Community College, et al., No. 18-1668 (7th Cir. 10/11/2018).  The ADEA prohibits an employer from taking adverse job actions against employees who are forty years old or older because of their age.  To prevail on a disparate-impact claim, a plaintiff must demonstrate that a specific, facially neutral employment practice caused a significantly disproportionate adverse impact based on age.  Unlike disparate treatment claims, disparate-impact claims do not require proof of discriminatory motive.

7th Circuit Affirms Dismissal of Claim for Tortious Interference with Employment Contract under Illinois Law

On October 11, 2018, the 7th Circuit affirmed an order of the district court which dismissed an Illinois common law tort claim for tortious interference with an employment contract for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ. P. 12(b)(6).  Webb v. Frawley, No. 18-1607 (7th Cir. 10/11/2018).  The plaintiff sued a former co-worker for tortiously interfering with his employment contract, claiming that the interference resulted in the termination of his employment.  The district court granted the defendant's motion to dismiss.  The plaintiff alleged that the defendant intentionally induced a breach of his employment contract by his employer--the termination of his employment--by ordering him to pursue business that his employer refused to fulfill, and by reporting to his employer that he was not performing.  The plaintiff claimed that the defendant did so in an attempt to resurrect or save the defendant's commercial reputation.  The plaintiff was advised that his employer had terminated his employment for poor performance and a lack of productivity.

7th Circuit Affirms Dismissal of FLSA Wage Lawsuit

On December 12, 2018, the 7th Circuit affirmed the district court's dismissal of a lawsuit filed by a group of flight attendants, who alleged that their employer's compensation policy--paying for their work in the air but not on the ground--violated the federal Fair Labor Standards Act ("FLSA") and various state and local wage laws.  Hirst et al. v. SkyWest, Inc., et al., Nos. 17-3643 & 17-3660 (7th Cir. 12/12/2018).  The district court dismissed the complaint in its entirety, finding that the flight attendants had failed to allege a FLSA violation.  The fight attendants plausibly alleged that they were not paid for certain hours of work.  However, the 7th Circuit agreed with the other federal circuits, that under the FLSA, the relevant unit for determining a wage violation is not wages per hour, but the average hourly wage across a workweek.  Because the flight attendants failed to allege even a single workweek in which one them received less than the applicable minimum wage, the 7th Circuit affirmed the dismissal of their FLSA claims.

7th Circuit Affirms Summary Judgment on Title VII Discrimination, Retaliation and Hostile Work Environment Claims

On October 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant-employer in a Title VII lawsuit in which the plaintiff, a former dental assistant at a Veterans Affairs dental clinic, alleged that he was discriminated against based on his gender (male) and race (Hispanic), he was retaliated against for filing EEO complaints, and he faced a hostile work environment.  Abrego v. Wilkie, Secretary of Veterans Affairs, No. 17-3413 (7th Cir. 10/30/2018).  Under Title VII of the Civil Rights Act of 1964 ("Title VII"), it is unlawful for an employer to discriminate against an employee based on race, color, religion, sex, or national origin.  To prevail on a Title VII employment discrimination claim, a plaintiff-employee must prove three elements: (1) she is a member of a protected class; (2) she has been subjected to an adverse employment action; and (3) that the employer took the adverse job action on account of the employee's membership in the protected class.

7th Circuit Reverses Summary Judgment for Employer on Title VII Retaliation Claim

On October 15, 2018, the 7th Circuit reversed an order of summary judgment that the district court had entered in favor of the defendant-employer in a Title VII lawsuit in which the plaintiff alleged that her former employer unlawfully terminated her employment in retaliation for her protected activity of filing an internal complaint of sexual harassment with human resources against a manager who had sexually harassed another employee.  Donley v. Stryker Sales Corporation, No. 17-1195 (7th Cir. 10/15/2018).  The 7th Circuit held that suspicious timing and shifting, inconsistent explanations from the employer raised genuine issues of material fact about the reason for the termination sufficient to preclude summary judgment.

7th Circuit Explains Joint Employer Doctrine in Sexual Harassment, Pregnancy Discrimination and Retaliation Case Against Multiple Entities

On September 11, 2018, the 7th Circuit issued an opinion in which it explained the joint employer doctrine and reversed the district court's decision on summary judgment that an employer management services company was not a joint employer of the plaintiff-employee in her sexual harassment, retaliation, and pregnancy discrimination lawsuit against multiple separate companies.  Frey v. Hotel Coleman, et al., No.17-2267 (7th Cir. 9/11/2018).  This case presented issues regarding the employer-employee relationship that arise in the increasingly common scenario in which one employer hires another entity to manage the day-to-day operations of an enterprise.  One entity provides the paycheck but another entity manages the tasks typically associated with an employer, such as hiring, firing, training, supervising, and evaluating employees.  In this case, a hotel hired a management company to handle its daily operations.  Under the hotel management agreement, the management company was responsible for hiring, supervising, directing, and discharging employees, and determining the compensation, benefits, and terms and conditions of their employment. The hotel agreed that it would not give direct instructions to any employee of the hotel or the management company that may interfere, undermine, conflict with or affect the authority and chain of command established by the management company.  The plaintiff and other staff members who worked at the hotel were on the hotel's payroll, and the management agreement stated that all personnel are in the employ of the hotel.

7th Circuit Affirms Jury Verdict for Plaintiff in Sexual Harassment Lawsuit Based on Alleged Harassment of Employee by Store Customer

On September 10, 2018, the 7th Circuit affirmed a jury verdict in favor of a former employee of a big box company, who alleged and testified that she was harassed by a store customer.  Equal Employment Opportunity Commission v. Costco Wholesale Corporation, Nos. 17-2432 & 17-2454 (7th Cir. 9/10/2018).  The employee testified at trial that she was stalked by a store customer for over a year.  Things got so bad at the end that she secured a no-contact order from an Illinois state court.  She took unpaid medical leave due to emotional trauma from the experience, and when she did not return to work from medical leave, the company terminated her employment.  The Equal Employment Opportunity Commission ("EEOC") filed a lawsuit against the company on behalf of the employee, alleging that the company had subjected her to a hostile work environment by tolerating the customer's harassment.  The 7th Circuit held that a reasonable jury could conclude that the customer's conduct was severe or pervasive enough to render the employee's work environment hostile.


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