On September 27, 2016, the 7th Circuit affirmed an order of summary judgment in a lawsuit in which an African-American employee alleged that he experienced a hostile work environment, including a hangman's noose in his workspace, as well as race discrimination and retaliation. Cole v. Board of Trustees of Northern Illinois University, No. 15-2305 (7th Cir. 9/27/2016). He sued asserting violations of Title VII of the Civil Rights Act of 1964 ("Title VII"). The plaintiff's hostile work environment claim failed because he did not establish a basis for employer liability for the alleged harassment. Workplace harassment that is sufficiently severe or pervasive to alter the terms and conditions of employment is actionable under Title VII as a claim of hostile work environment. To prove a claim for hostile work environment based on race, an employee must establish that: (1) he or she was subjected to unwelcome harassment; (2) the harassment was based on his or her race; (3) the harassment was severe or pervasive enough to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. In determining whether a work environment is sufficiently abusive to be actionable, courts consider whether the conduct is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance.
U.S. District Court, Northern District of Illinois
On October 19, 2016, the 7th Circuit reversed an order of summary judgment on Title VII and Illinois Human Rights Act ("IHRA") retaliation claims in which the plaintiffs alleged that the defendant refused to hire them as emergency medical technicians because of their prior sexual harassment complaints against interrelated business entities. Volling, et al. v. Kurtz Paramedic Services, Inc., No. 15-3572 (7th Cir. 10/19/2016). Under federal and Illinois law, it is unlawful for an employer to retaliate against an employee or job applicant because he or she engaged in protected activity such as opposing sexual harassment or any other unlawful employment practice of any employer. Illinois courts apply the federal Title VII framework to IHRA claims. To prevail on a Title VII retaliation claim, a plaintiff must establish that: (1) he or she engaged in a statutorily protected activity; (2) a materially adverse employment action was taken against him or her by the employer; and (3) there is a causal connection between the two. In the failure to hire context, a plaintiff must show that: (1) he or she engaged in protected activity; (2) he or she applied and had the technical qualifications required for the job position; (3) he or she was not hired for the position; and (4) a similarly situated individual who did not engage in protected activity was hired for the position.
On October 11, 2016, the 7th Circuit affirmed summary judgment on claims for race discrimination and retaliation. Williams v. Office of the Chief Judge of Cook County, Illinois, et al., Nos. 15-2325 & 15-2554 (7th Cir. 10/11/2016). The plaintiff, a probation officer who was told that she was fired for job abandonment, filed a lawsuit in which she alleged that she fired because of her race, in retaliation for complaining about racial harassment, and in retaliation for filing a workers' compensation claim. Under Illinois law, there is a common-law claim for retaliatory discharge when an employee is terminated in retaliation for exercising his or her rights under the Illinois Workers' Compensation Act (the "Act"). The employee must prove that he or she: (1) was an employee before the workplace injury; (2) exercised a right under the Act; and (3) that his or her discharge was causally related to the exercise of that right. That does not mean that an employer can never fire an employee who has filed a workers' compensation claim. An employer is not liable if its reason for the discharge is entirely unrelated to the employee's workers' compensation claim. The plaintiff claimed that the decision-maker fired her in connection with a dispute about her return-to-work date from her injury-related leave of absence. However, she failed to offer any evidence that the decision-maker knew of the dispute and, therefore, she could not establish the causal connection necessary to sustain her retaliation claim.
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 16, 2016, the 7th Circuit reversed an order of summary judgment entered by the district court in a federal lawsuit in which the plaintiff, a special education teacher diagnosed with PTSD, alleges that the School District failed to provide her with reasonable accommodation for her disability by refusing her request to be transferred to another special education job in the District that does not involve behavioral or emotional disorder students. Lawler v. Peoria School District No. 150, No. 15-2976 (7th Cir. 9/16/2016). She was tenured by the District after nine years of satisfactory performance. However, when she suffered a relapse of her PTSD, and the District then learned about her disability for the first time, the District transferred her to a different school, to teach children with not only learning disabilities, but also severe emotional and behavioral disorders. The plaintiff and her new supervisor at the new school thought that this was a bad idea. She was rated satisfactory after a year in the new position, but at the start of her second year, she was injured by a disruptive student. Her psychiatrist notified the District that the incident had retriggered her PTSD, and that she needed to be transferred to a different teaching environment. The District did not transfer her, but instead accelerated her next performance appraisal, rated her as unsatisfactory, and terminated her employment as part of a reduction-in-force through which all but unsatisfactory rated teachers were rehired.
On September 6, 2016, the 7th Circuit affirmed a jury verdict in favor of a defendant employer in a lawsuit in which the plaintiff, a former employee, alleged that the employer fired her for taking or requesting leave under the Family and Medical Leave Act ("FMLA"), in violation of the FMLA. Arrigo v. Jay E. Link, et al., Nos. 13-3838 & 14-3298 (7th Cir. 9/6/2016). After a trial in federal court, the jury returned a verdict for the defendant. The plaintiff appealed on various evidentiary and procedural grounds. Among other things, she contended that the district court erred by excluding from evidence her supervisor's notes from a meeting about her return from medical leave. The 7th Circuit concluded that the district court was correct in excluding the notes as irrelevant to the FMLA claim because they did not imply an unlawful motive. The notes, which contained explicit references to the plaintiff's medical conditions (arguably disabilities under the Americans with Disabilities Act ("ADA")), would likely have been relevant and admissible in an ADA disability discrimination lawsuit to demonstrate a disability-based discriminatory animus; but the plaintiff's ADA claim had been thrown out of court on procedural grounds before trial.
On August 26, 2016, the 7th Circuit affirmed the district court's entry of summary judgment in favor of the defendant-employer in a lawsuit in which the plaintiff, a hospital security guard, claimed that he was fired because of his race, African-American, in violation of Title VII of the Civil Rights Act of 1964. Lane v. Riverview Hospital, No. 15-1118 (7th Cir. 8/26/2016). The hospital claimed that it terminated his employment as a result of an alleged incident involving his interaction with a patient. The question was whether he offered enough evidence to allow a reasonable jury to infer that he would not have been fired if he were not African-American and everything else remained the same. The plaintiff argued that a similar incident involving a Caucasian security guard, who was not fired or disciplined as a result of the incident, raised an inference of discrimination.
On August 23, 2016, the 7th Circuit reversed a $2 million jury verdict on an Illinois workers' compensation retaliatory discharge claim. Hillmann v. City of Chicago, No. 14-3438 & 14-3494 (7th Cir. 8/23/2016). The plaintiff worked for the City in its Department of Streets and Sanitation for three decades, until the City eliminated his position in a reduction-in-force ("RIF"). He filed a lawsuit against the City alleging that he was targeted for elimination in the RIF because he exercised his rights under the Illinois Workers' Compensation Act ("IWCA") and the Americans with Disabilities Act ("ADA"). After a jury trial on the IWCA retaliation claim, the jury returned a $2 million damages verdict in favor of the plaintiff. The judge found for the City after a bench trial on the ADA retaliation claim. Both sides appealed.