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.
The 5 reversals involved the following types of claims: (1) retaliation under Title VII and the Illinois Human Rights Act; (2) disability/failure to accommodate under the Rehabilitation Act (applying ADA caselaw); (3) ethnicity discrimination under Section 1981 and the Illinois Human Rights Act; (4) Illinois common law workers' compensation retaliatory discharge; and (5) reverse discrimination under Title VII and Section 1981. The commonality, if there is one, is that there was enough evidence in each case to raise a doubt about the employer's motivation, such that a reasonable jury could find that the adverse employment action was motivated by the employee's protected class, protected activity, or other prohibited factor.
Speaking of the 'reasonable jury standard,' one of the most significant employment law decisions of 2016 was Ortiz v. Werner Enterprises, No. 15-2574 (7th Cir. 8/19/2016). In Ortiz, the 7th Circuit did away once and for all with the direct and indirect methods of proof dichotomy as well as the 'convincing mosaic' standard of proof: "the 'rat's nest' of surplus 'tests' removed from the law of this circuit..." all evidence "belongs in a single 'pile' and must be evaluated as a whole...." Moreover, "from now on, any decision of a district court that treats this phrase [convincing mosaic] as a legal requirement in an employment discrimination case is subject to summary reversal...." No more separate direct and indirect methodology and analysis. Instead, the test on summary judgment is whether a reasonable jury could find, based on all of the evidence in its totality, that the employment action in question resulted from an unlawful motivation.
A major employment law issue in 2016 is whether sexual orientation discrimination is covered under Title VII. (It is under the Illinois Human Rights Act). The EEOC says yes, but the 7th and other federal circuits have said no, creating a judicial conundrum. The case everyone is watching is Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. 7/28/2016), in which the 7th Circuit held, back in July 2016, that sexual preference discrimination is outside of the coverage of Title VII. However, on November 30, 2016, the 7th Circuit heard oral argument in an en banc rehearing of Ortiz. Based on the questions posed by the judges to the attorneys at the rehearing, there is speculation that the 7th Circuit may change direction and hold that sexual orientation discrimination is actionable under Title VII, which would be a front-runner for other federal circuits.
Another significant employment law development in 2016 is that the EEOC implemented new investigative procedures. Now, for the first time, the charging party may obtain the respondent's position statement while the EEOC investigation is still pending, and, in addition, may file a written response to the position statement for the investigator's consideration. This is a departure from the old days, when the charging party could only obtain the position statement after the EEOC investigation was closed, and even then only through a FOIA request. Now the charging party has the opportunity to review and rebut the respondent's position statement.
What changes in employment law will occur in 2017 with the new Presidency? It will surely be interesting.