7th Circuit Reverses Summary Judgment in Title VII and Section 1981 Failure-to-Hire Race Discrimination Case

On June 6, 2014, the 7th Circuit reversed the district court's grant of summary judgment on Title VII and Section 1981 race discrimination failure-to-hire claims.  Whitfield v. International Truck and Engine Corp., No. 13-1876 (June 6, 2014).  Stating that the same evidentiary standards apply to Title VII and Section 1981 claims, the 7th Circuit applied the direct and indirect methods of proof for employment discrimination.  Direct or circumstantial evidence may be used under the direct method.  Direct evidence is rare.  A "mosaic" of circumstantial evidence, from which intentional discrimination may be inferred, works under the direct method.  The mosaic must point to the discriminatory reason for the employer's action and directly relate to the employment decision.  Remarks and other circumstantial evidence that reflect a propensity by the decision-maker to evaluate a job-candidate based on illegal criterion is enough under the direct method, even if the evidence "stops short of a virtual admission of illegality." 

In Whitfield, the employer had "racially coded" the outer-jacket of the plaintiff's personnel file--the word "Black" was written on it.  There was also evidence of a racially hostile work environment.  The racially coded personnel file and hostile work environment linked to the refusal to hire and supported an inference that the decision was illegally motivated by the plaintiff's race.  The inference of intentional discrimination was not negated by the employer's hiring of another African-American for the same type of position during the same time-period.  The fact that another member of the same protected class was hired "does not magically negate" an inference of discrimination.

In order to establish a failure-to-hire employment discrimination case under the indirect method, a plaintiff must show that he or she: (1) is a member of a protected class; (2) applied for an open position for which he or she is qualified; (3) did not receive the position; and (4) those hired for the position are not in the protected class and have similar or lesser qualifications.  The employer in Whitfield failed to identify the decision-maker who evaluated the respective qualifications and, therefore, was unable to establish that the plaintiff was not qualified or had less experience than those who were hired.

The employer's explanation, that those hired were more qualified due to additional training, backfired and demonstrated pretext, because the training occurred after hiring.  Pretext may be established from evidence that: (1) the decision-makers were "more likely than not" motivated by a discriminatory reason; or (2) their explanations are unworthy of credence, i.e., (a) factually baseless, (b) did not actually motivate the decision; or (c) insufficient to motivate the decision.  The multi-pronged definition of pretext set forth in Whitfield appears to be broader than the definition of pretext as a lie or dishonest explanation found in other 7th Circuit opinions.