7th Circuit Reverses Summary Judgment on Title VII Sex Discrimination Failure-to-Hire Claim

On March 20, 2020, the 7th Circuit reversed an order of summary judgment in favor of an employer-defendant in a Title VII gender discrimination failure-to-hire lawsuit.  Joll v. Valparaiso Community Schools, No. 18-3630 (7th Cir. March 20, 2020).  The plaintiff is an experienced running coach who applied for but was denied positions as assistant coach of the girls' and boys' cross-country teams, which were given to younger male applicants.  She sued for sex discrimination under Title VII and age discrimination under the Age Discrimination in Employment Act.  The district court granted summary judgment for the employer on both claims.  The 7th Circuit reversed on the gender discrimination claim because the district court erred by not viewing the evidence in its totality.  The plaintiff offered evidence that would allow a reasonable jury to find that the school district used hiring procedures tilted in favor of male applicants, applied sex-role stereotypes during the interview process, and manipulated the hiring criteria in ways that were inconsistent except that they always favored male applicants.

Title VII prohibits intentional discrimination in employment on the basis of statutorily proscribed factors, including sex.  The question is whether a prohibited factor caused the failure to hire.  Direct and circumstantial evidence may support an inference of causation and intent.  A plaintiff may proceed with or without the burden-shifting McDonnell Douglas framework.  To establish a case of sex discrimination without the burden-shifting framework, a plaintiff must provide either direct or circumstantial evidence that supports an inference of intentional discrimination.  There are three types of circumstantial evidence that will support an inference of discrimination: (1) ambiguous or suggestive comments or conduct; (2) better treatment of similarly situated employees outside of the protected classification; and (3) dishonest employer justifications for disparate treatment.  The plaintiff offered some of each, which, together, would permit a reasonable jury to infer an overall likelihood of discrimination.  A jury could infer that the decision-makers did not want to hire a woman for the coaching positions and did what they could to ensure that the only woman applicant would not be hired.

There was differential treatment in the selection process itself.  The plaintiff had trouble securing an initial interview, suggesting a baseline reluctance to even consider her.  After the interview, her references were contacted sooner than was ordinary, while male applicants' were contacted later or not at all.  An employer's deviation from its standard procedures can support employment discrimination claims.  In addition, there was evidence that the decision-makers were indulging sex-role stereotypes.  Basing an employment decision on an employer's notions of how women do or ought to behave constitutes gender discrimination.  The idea that a woman is or ought to be dedicated to family above work is one such classic stereotype.  A jury could find that the interviewers' questions, at least when they were asked only of the plaintiff and not of a similarly situated male applicant, reflected such stereotyping.  The school district strained to reject the plaintiff's application based on sex-role stereotypes.  The decision-makers discounted the two long and positive narratives from a runner and a head coach, in favor of a principal's isolated comment that she had a "dominant personality."  A jury could conclude that the plaintiff was being penalized for transgressing the age-old stereotype that women are or ought to be submissive.  Shifting reasons and hiring criteria that always favored the male applicants provided further support for plaintiff's sex discrimination claim.  An employer's dishonest or inconsistent explanation for an employment decision supports an inference that its real reason was unlawful.