On June 5, 2019, the United States Court of Appeals for the Seventh Circuit affirmed the district court's order of summary judgment in favor of a defendant-employer in a Title VII race discrimination and retaliation lawsuit. LaRiviere v. Board of Trustees of Southern Illinois University, et al., No. 18-3188 (7th Cir. June 5, 2019). The plaintiff, an African-American woman, who was notified that she would not be reappointed to her position, sued for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"). Absent evidence that her ethnicity was the reason for her termination, or of a causal connection between her protected activity and her termination, her claims could not survive summary judgment. While "[u]nmistakable evidence of racial animus--racial epithets or explicitly race-motivated treatment--makes for simply analysis....[t]he more complicated cases arise when there is no 'smoking gun' showing intentional employment discrimination."
Employment Law Chicago Blog
On June 3, 2019, the United States Supreme Court ruled that the requirement under Title VII of the Civil Rights Act of 1964 ("Title VII") that a complainant must first file a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") as a precondition to the commencement of a Title VII lawsuit in court is not jurisdictional. Ford Bend County, Texas v. Davis, 587 U.S. ___ (2019). Title VII proscribes employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII also prohibits retaliation against persons who assert rights under the statute. As a precondition to filing a Title VII employment discrimination lawsuit in court, a complainant must first file a charge of discrimination with the EEOC. The Supreme Court considered whether Title VII's charge-filing precondition is a jurisdictional requirement that may be raised by the defense at any stage of a lawsuit, or a procedural prescription mandatory if timely raised, but subject to waiver if not timely raised. In an opinion authored by Justice Ginsburg, the Supreme Court held that the charge-filing precondition is not jurisdictional. Consequently, a plaintiff's failure to file a charge of discrimination before filing a Title VII lawsuit must be timely raised as an objection or a defense early in the lawsuit. Otherwise, the objection or defense may be forfeited.
On May 17, 2019, the Illinois Appellate Court, Third District, held that a corporate employer may be liable under the Illinois Gender Violence Act ("IGVA") (740 ILCS 82/10 (West 2016)) arising from gender-related violence perpetrated by the employer's corporate employees (which would include 'physical' workplace sexual harassment). Gasic v. Marquette Management, Inc., 2019 IL App (3d) 170756 (3d Dist. May 17, 2019). The Gasic decision expands the liability of Illinois employers for gender-based workplace violence, workplace sexual assault, and physical sexual harassment committed by their employees. In this case, the plaintiff, an alleged victim of sexual violence, filed a complaint against the employer of the alleged perpetrator, alleging a statutory cause of action against the defendant employer under section 10 of the IGVA, based on the alleged acts of the employer's employee. The trial court dismissed the claim on the basis that the IGVA does not apply to corporate conduct. The following question was certified for appeal: "[C]an an entity be considered a 'person' committing acts 'personally' for purposes of liability under the Gender Violence Act?" The Illinois Appellate Court answered the question in the affirmative, and reversed the trial court's dismissal of the plaintiff's statutory claim under the IGVA.
On May 23, 2019, the Illinois Supreme Court upheld a plaintiff's complaint against an employer for negligent hiring, retention, and supervision of an employee. Jane Doe, et al. v. Chad Coe, et al., 2019 IL 123521 (May 23, 2019). This case involved an alleged sexual assault by a youth pastor who was employed by the employer. The plaintiff alleged that the employer negligently and willfully and wantonly hired, supervised, and retained the employee. The plaintiff filed a complaint alleging five counts: (1) negligent supervision; (2) negligent retention; (3) willful and wanton failure to protect; (4) willful and wanton retention and failure to supervise; and (5) negligent hiring. Under Illinois negligence law, an employer may be liable for an employee's torts in one of two ways, depending on whether the employee was acting within the scope of his employment. If the employee was within the scope of his employment, the employer can be found liable for his actions under a theory of vicarious liability, or respondeat superior. If an employee acts outside of the scope of his employment, however, the plaintiff can bring a direct cause of action against the employer for the employer's misconduct. Negligent hiring, negligent supervision, and negligent retention are all direct causes of action against the employer for the employer's misconduct in failing to reasonably hire, supervise, or retain the employee.
On May 10, 2019, the Illinois Appellate Court, First District, reversed the trial court's dismissal of an employer's two-count complaint for breach of fiduciary duty and tortious interference with prospective economic advantage. Advantage Marketing Group, Inc. v. Keane, 2019 IL App (1st) 181126 (First District May 10, 2019). The First District held that the employer's complaint stated causes of action against the employee for breach of fiduciary duty and tortious interference, even though the employee was not an officer or director of the company. The employer alleged that the employee breached his fiduciary duty to the employer when he allegedly failed to disclose and misappropriated a corporate opportunity to purchase a competing business. Under Illinois law, an employee owes fiduciary duties to his or her employer, which arise from the employment relationship. These include the duties of loyalty and fidelity as well as the duty to avoid self-dealing at the expense of the employer.
On May 8, 2019, the 7th Circuit affirmed an order of summary judgment in favor of a hospital on Title VII employment discrimination claims brought by a physician whose practice privileges were terminated by the hospital. Levitin v. Northwest Community Hospital, No. 16-3774 (7th Cir. May 8, 2019). The physician sued the hospital, alleging that it terminated her hospital practice privileges on the basis of her sex, religion, and ethnicity, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). The hospital argued that the physician was not an employee of the hospital and, therefore, her Title VII discrimination claims were precluded. The district court found that she was an independent physician with practice privileges at the hospital, not the hospital's employee.
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