What Is Required For An Employee To Prove Employment Discrimination?

On February 17, 2021, the 7th Circuit affirmed an order of summary judgment in a federal employment discrimination lawsuit for age, sex, race, and disability discrimination, as well as retaliation.  Igasaki v. Illinois Department Of Financial And Professional Regulation, No. 18-3351 (7th Cir. 2/17/2021).  The plaintiff, a 62-year-old gay Japanese man with gout, worked as a staff attorney for the State of Illinois.  He alleged five claims: (1) race discrimination based on his Asian ethnicity in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), arising from the treatment of his job performance and his employment termination; (2) sex discrimination in violation of Title VII, arising from gender stereotyping and a hostile work environment based on his sexual orientation; (3) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), arising from the treatment of his job performance and employment termination; (4) retaliation in violation of Title VII, arising from his employment termination after he filed his EEOC charge of discrimination; and (5) disability discrimination in violation of the Americans with Disabilities Act ("ADA"), arising from the failure to accommodate his gout disability.

Title VII prohibits employers from discriminating against employees with respect to her or his compensation, terms, conditions, or privileges of employment, because of her or his race, color, religion, sex, or national origin.  The main question on summary judgment in employment discrimination cases is whether the plaintiff has introduced evidence that would permit a reasonable jury to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the employment termination or other adverse employment action.  A plaintiff may prove employment discrimination with direct or circumstantial evidence.  In either case, courts evaluate the evidence as a whole.  One way to prove employment discrimination is the indirect burden-shifting method established by the United States Supreme Court in McDonnell Douglas v. Green.  This requires a plaintiff to first establish a prima facie case of employment discrimination by demonstrating that she: (1) is a member of a protected class; (2) met her employer's legitimate job performance expectations; (3) suffered an adverse employment action; and (4) another similarly situated employee outside of her protected class received better treatment from her employer.  If the employee satisfies the elements of a prima facie case of employment discrimination, the burden shifts to the employer to come forward with a legitimate, non-discriminatory reason for the adverse employment action.  If the employer does so, then the burden shifts back to the employee to prove that the employer's proffered reason is pretext for discrimination.  However, a plaintiff is not required to use the McDonnell Douglas framework to prove employment discrimination.  A plaintiff may also use the holistic method of proof established by the 7th Circuit in Ortiz v. Werner Enterprises, Inc., under which "all evidence belongs in a single pile and must be evaluated as a whole."

In this case, the plaintiff's Title VII race and sex discrimination claims failed under the McDonnell Douglas framework for two reasons: (1) he did not raise a genuine issue of material fact as to the defendant's position that he failed to meet its legitimate performance expectations; and (2) he did not identify a similarly situated employee who received better treatment.  Performance reviews are admissible in evidence to prove an employee's job performance, although they are not entirely dispositive.  The issue with performance reviews is not whether the performance ratings were correct, but whether the employer's description of its reasons for the ratings is honest.  The plaintiff did not offer any evidence of dishonesty.  Disagreement does not mean that performance evaluations are the result of unlawful discrimination.  The plaintiff also did not show any disparate treatment.  Although they need not be identically positioned, similarly situated employees must be directly comparable to the plaintiff in all material respects.  The plaintiff did not present any evidence regarding a similarly situated employee from which a court could draw a valid comparison.  Thus, the plaintiff failed to establish a prima facie case of race or sex discrimination under the McDonnell Douglas framework.  The plaintiff's case also failed under Ortiz.  The totality of the evidence did not support a reasonable finding of discrimination.  Harsh treatment from a supervisor without a discriminatory motivation on her part is of no avail.

The plaintiff's retaliation claim also failed.  Title VII prohibits employers from retaliating against employees for engaging in the protected activity of opposing an unlawful employment practice or making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing.  The question is whether a retaliatory motive caused the discharge or other adverse employment action.  For an inference of the required element of causation to be drawn solely on the basis of suspicious timing, the 7th Circuit "typically allow[s] no more than a few days to elapse between the protected activity and the adverse action."  Therefore, the two-month gap between the plaintiff's protected activity of filing an EEOC charge and requesting a reasonable accommodation, without any other evidence, was insufficient to show retaliation on its own.  When suspicious timing alone is insufficient to carry the plaintiff's burden, a plaintiff may survive summary judgment if there is other evidence that supports the inference of a causal link.  However, the plaintiff did not present additional evidence that could corroborate and strengthen his assertion of a causal connection based on suspicious timing.  No reasonable jury could have found that the defendant retaliated against the plaintiff.

The ADEA prohibits employers from discriminating against employees with respect to her or his compensation, terms, conditions, or privileges of employment, because of her or his age.  Under the ADEA, an age discrimination plaintiff must prove that age was the "but for" cause of the adverse employment action.  Unlike Title VII, mixed-motive claims are not actionable under the ADEA.  The plaintiff's age discrimination claim failed for the same reasons as his Title VII discrimination claims.  Age played no "but for" factor, let alone any factor at all, in the plaintiff's employment termination.

The plaintiff's ADA claim, that the defendant failed to reasonably accommodate his gout disability, fared no better.  The ADA requires employers to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.  To prevail on an ADA claim, an employee must establish three elements: (1) she is disabled within the meaning of the ADA; (2) she is otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (3) her disability caused the adverse employment action.  As part of its ADA obligations, an employer is required to engage with the employee in an interactive process to determine the appropriate accommodation under the circumstances.  There is no independent cause of action for the breakdown of the interactive process under the ADA, unless the employer's failure to engage in the interactive process resulted in a failure to identify an appropriate accommodation.  In this case, the employer provided the plaintiff with several reasonable accommodations, including an ergonomic keyboard, a tape recorder, and authorization for an administrative assistant to type up his written work product.  His complaint, that the accommodations were inappropriate or unreasonable, and that he wanted more, was without merit.  It is the employer's prerogative to choose a reasonable accommodation; and the employer is not required to provide the particular accommodation that an employee requests.  That a plaintiff wants more or different accommodations does not make the accommodations that he did receive unreasonable.