On June 24, 2014, the 7th Circuit ruled in favor of an employee in a Family and Medical Leave Act case in which it clarified three issues discussed below. Gienapp v. Harbor Crest, No. 14-1053 (7th Cir.) June 24, 2014. Under the Family and Medical Leave Act, employees are entitled to up to 12 weeks' unpaid leave to care for a spouse, parent, or child with a serious health condition. The employee is required to provide the employer with notice of the need for FMLA leave. If the leave is foreseeable, the employee is also required to inform the employer of the duration of the FMLA leave. However, if the leave is unforeseeable, the employee is not required to inform the employer of how much leave is needed. In other words, if the employee does not know how much leave is needed, the employee has no obligation to provide the employer with a specific return to work date. In Gienapp, an employee applied for and was granted FMLA leave to care for her daughter, but did not specify a return to work date on the FMLA form. The employer replaced her while she was on FMLA leave. The employer contended that it was not liable for an FMLA violation because the employee did not provide the employer with the duration of her leave, even though its FMLA form required this information. However, the employee did not know when she could return. Because the status of the employee's daughter was changeable, the employee had no obligation to give the employer a firm return to work date.
Employment Law Chicago Blog
On June 19, 2014, the 7th Circuit affirmed summary judgment in a Title VII harassment and discharge case. Nichols v. Michigan City Plant Planning Dept., No. 13-2893 (7th Cir.) June 19, 2014. The 7th Circuit held that the plaintiff did not provide sufficient evidence of a hostile work environment. Employers are prohibited from requiring employees to work in a discriminatorily hostile or abusive work environment. To succeed on a hostile work environment claim, an employee must establish that: (1) the work environment was both subjectively and objectively offensive; (2) the harassment was based on membership in a protected class; (3) the conduct was severe or pervasive; and (4) there is a basis for employer liability. The question is whether the conduct was so severe or pervasive that it altered the conditions of the employment relationship. The court examines the totality of the circumstances, including: (1) the frequency of the conduct; (2) the degree to which the conduct would seem offensive to a reasonable person; (3) whether it is physically threatening or humiliating conduct as opposed to verbal abuse; (4) whether it unreasonably interferes with the employee's work performance; and (5) whether the conduct was directed at the victim.
On June 13, 2014, the 7th Circuit affirmed the district court's grant of summary judgment on claims for national origin discrimination and retaliation under Title VII and Section 1981. Huang v. Continental Casualty Company, No. 12-1300 (7th Cir.) June 13, 2014. In order to establish a prima facie case of national origin discrimination under Title VII or Section 1981, the plaintiff was required to offer evidence that: (1) he is a member of a protected class; (2) he was meeting his employer's legitimate performance expectations; (3) he suffered an adverse employment action; and (4) other similarly situated non-Chinese or non-Asian employees were treated more favorably. Unless all these elements are met, the claim fails. The plaintiff contended that the employer applied its job expectations unequally; so the elements of performance and disparate treatment merge. The employer contended that it terminated the plaintiff because he refused to follow a weekend-hours job requirement. The 7th circuit rejected the plaintiff's argument that he met the employer's job expectations by offering alternative scheduling. Employers are entitled to determine their own scheduling needs and decide whether employees are meeting them. The plaintiff's argument that pager duty was illegitimate because it was not in the written job description also failed. Job duties do not have to be listed in a job description in order to be valid employment expectations. The plaintiff also provided no evidence of disparate treatment. In order to survive summary judgment, he had to identify at least one similarly situated non-Chinese employee who was treated more favorably under similar circumstances. The plaintiff failed to satisfy the elements of a prima facie case of employment discrimination; consequently, pretext does not even come into play.
On June 12, 2014, the 7th Circuit affirmed the district court's grant of summary judgment on Title VII reverse discrimination failure-to-promote claims. Garofalo and Peers v. Village of Hazel Crest, Nos. 12-1668 & 12-1681 (7th Cir.) June 12, 2014. The 7th Circuit reiterated its simplified summary judgment standard for employment discrimination claims--whether a reasonable jury could find prohibited discrimination. Under the direct method of proof, a plaintiff can survive summary judgment by producing either circumstantial or direct evidence that creates a triable issue on whether discrimination motivated the adverse employment action. To establish a Title VII failure-to-promote claim under the indirect method, a plaintiff must offer evidence that: (1) he or she is a member of a protected class; (2) he or she was qualified for the position sought; (3) he or she was rejected for the position; and (4) the employer promoted someone outside of the protected class who was not better qualified. However, in a case alleging reverse discrimination, a plaintiff must also show background circumstances suggesting that the employer discriminates against the majority.
The Illinois Legislature has amended the Illinois Human Rights Act to protect pregnant employees from discrimination. House Bill 8, effective January 1, 2015, makes it unlawful for an Illinois employer to discharge, refuse to hire, segregate, or take other adverse employment action on the basis of pregnancy, childbirth, or conditions related to pregnancy or childbirth. An Illinois employer will also be required to provide reasonable accommodations to job applicants and part-time, full-time, or probationary employees for any medical or common condition related to pregnancy or childbirth, unless the employer can demonstrate that the accommodation imposes an undue hardship on its business. Examples of the reasonable accommodations include: more frequent or longer bathroom breaks, breaks for increased water intake, and breaks for periodic rest; private non-bathroom space for expressing breast milk and breastfeeding; seating; assistance with manual labor; light duty; temporary transfer to a less strenuous or hazardous position; an accessible worksite; acquisition or modification of equipment; job restructuring; a part-time modified work schedule; appropriate adjustment or modifications of examinations, training materials, or policies; reassignment to a vacant position; time-off to recover from conditions related to childbirth; and leave necessitated by pregnancy, childbirth or resulting conditions. The new law prohibits adverse job action based on the need of an employer to provide reasonable accommodations for conditions related to pregnancy or childbirth. House Bill 8 also amends the retaliation provision of the Illinois Human Rights Act to make it unlawful for an employer to retaliate against a person because he or she requested, attempted to request, used, or attempted to use any reasonable accommodation under the Act (pregnancy or non-pregnancy related).
On June 9, 2014, the Illinois Appellate Court, First District, held that an arbitration clause contained in an employment contract is valid and enforceable. Fuqua v. SVOX AG, 2014 IL App (1st) 131429. The arbitration clause stated that arbitration is the exclusive remedy for, "[a]ny dispute or controversy arising under or in connection with this Agreement or any other dispute concerning [employee's] employment with [employer]." However, the clause carved out an exception for restrictive covenants and confidentiality provisions, which could be enforced in court. The Appellate Court stated that the Illinois Uniform Arbitration Act (710 ILCS 5/1) is controlling, which applies contract law to arbitration agreements. The Appellate Court found that the arbitration clause is supported by the offer of employment, acceptance of the offer, and consideration--the employment (which lasted only 8 months). The Appellate Court also found that there are no grounds for revocation of the arbitration clause because it is not procedurally or substantively unconscionable. The employment law claims subject to the arbitration clause in Fuqua include breach of contract and retaliatory discharge, as well as alleged violations of the Illinois Wage Payment and Collection Act, the Illinois Whistleblower Act, and the Illinois Personnel Record Review Act.
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