Employee Fired for Alleged Sexual Harassment Loses Employment Discrimination Case

On November 23, 2015, the 7th Circuit affirmed summary judgment in favor of an employer in a Title VII race discrimination lawsuit, in which the employee claimed he was discharged because of his race, and the employer contended that he was discharged for alleged violation of its sexual harassment policy.  Smith v. CTA, No. 14-2622 (7th Cir., 11/23/2015).  The employer conducted an investigation of a complaint of sexual harassment against the employee made by a co-worker, who alleged that he had subjected her to unwelcome sexual propositions.  Unwelcome sexual propositions or unwelcome sexual advances may constitute unlawful sexual harassment, if they create a sexually hostile work environment.  After completing its internal investigation, the employer discharged the employee for violation of its sexual harassment policy.

The employee filed an EEOC Charge and later a federal lawsuit in which he alleged that he was a victim of intentional race discrimination.  In support of his employment discrimination claim, he alleged that the employer had a pattern and practice of applying its sexual harassment policy unequally on the basis of race, with lenient investigations and lighter discipline for white employees accused of sexual harassment.  A Title VII employment termination claim may be established through evidence of disparate discipline in connection with the termination.  However, the 7th Circuit concluded that the employee in this case failed to identify a similarly situated non-black employee who was accused of sexual harassment but treated more favorably in terms of investigation and discipline.  Although the employee raised another employee by name, he did not present enough specific details to satisfy the element of disparate treatment.  Therefore, his claim failed under the indirect burden shifting method of proving an employment discrimination claim.