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.
Title VII (Title VII of the Civil Rights Act of 1964, as amended)
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.
On June 6, 2014, the 7th Circuit reversed the district court's grant of summary judgment on Title VII and Section 1981 race discrimination failure-to-hire claims. Whitfield v. International Truck and Engine Corp., No. 13-1876 (June 6, 2014). Stating that the same evidentiary standards apply to Title VII and Section 1981 claims, the 7th Circuit applied the direct and indirect methods of proof for employment discrimination. Direct or circumstantial evidence may be used under the direct method. Direct evidence is rare. A "mosaic" of circumstantial evidence, from which intentional discrimination may be inferred, works under the direct method. The mosaic must point to the discriminatory reason for the employer's action and directly relate to the employment decision. Remarks and other circumstantial evidence that reflect a propensity by the decision-maker to evaluate a job-candidate based on illegal criterion is enough under the direct method, even if the evidence "stops short of a virtual admission of illegality."
The 7th Circuit applies a modified McDonnell Douglass test to reverse discrimination claims. Under McDonnell Douglass, a plaintiff must show that: (1) he is a member of a protected class; (2) he was meeting his employer's legitimate expectations; (3) he suffered an adverse job action; and (4) similarly situated individuals were treated more favorably than he was. However, when the plaintiff is a member of a "majority" (such as a male plaintiff alleging gender discrimination), he is required to establish "background circumstances" that demonstrate that the employer discriminates against the majority, or that there is something "fishy" going on. Farr v. St. Francis Hospital, 570 F.3d 829, 833 (7th Cir. 2009).
On May 12, 2014, the Belleville News-Democrat reported that five employees of the former St. Clair County Clerk were paid a combined settlement of $665,000 by the County in connection with alleged claims of sexual harassment. The employees had reportedly filed alleged charges of sex discrimination with the Illinois Department of Human Rights under Title VII and the Illinois Human Rights Act. The allegations of sexual harassment, which included inappropriate physical touching and sexual comments, were investigated by the United States Equal Employment Opportunity Commission. Sexual harassment is a form of sex discrimination that is unlawful under Title VII and the Illinois Human Rights Act.
On May 5, 2014, the 7th Circuit affirmed the district court's grant of summary judgment on Title VII national origin discrimination and retaliation claims. Hnin v. TOA, LLC, No. 13-3658 (May 5, 2014). In its decision, the 7th Circuit reiterated the elements of a prima facie case of employment discrimination under the indirect method of proof: (1) plaintiff is a member of a protected class; (2) plaintiff was meeting his employer's legitimate job expectations; (3) plaintiff suffered an adverse employment action; and (4) plaintiff's employer treated at least one similarly situated employee not in the plaintiff's protected class more favorably. If the plaintiff establishes a prima facie case of intentional discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. If the employer meets this burden, the burden shifts back to the plaintiff to present evidence that the employer's reason is pretext for unlawful discrimination.
The Seventh Circuit Court of Appeals recently reversed summary judgment on Title VII race and retaliation employment termination claims in Gosey v. Aurora Medical Center, No. 13-3375 (April 11, 2014). In Gosey, the defendant's sole proffered reason for the termination was alleged chronic tardiness on the part of the plaintiff, in violation of the defendant's employee handbook punctuality policy. However, a former chief officer of defendant testified that there was a workplace custom and practice of allowing employees a 7-minute grace-period within which to arrive. Defendant's time-records showed that the plaintiff arrived within the grace-period on all but one of the occasions upon which the defendant based its termination decision. The Seventh Circuit found that there were genuine issues of material fact surrounding the time-records and the defendant's attendance policy that precluded summary judgment. The Seventh Circuit stated that the existence of a uniform practice or policy that is in doubt cannot serve as a reason for an employment termination. Therefore, a rational jury could conclude that the defendant took the adverse job action on account of the plaintiff's protected class, and not for any non-invidious reason.
On March 26, 2014, the Seventh Circuit affirmed summary judgment in a Title VII gender discrimination case. Bass v. Joliet Public School District No. 86, No. 13-1742 (March 26, 2014). The Defendant established that it terminated the Plaintiff for job abandonment since she failed to return to work after exceeding all of her available leave time. The Plaintiff claimed that she was terminated because of her sex, in violation of Title VII. The Seventh Circuit found that the Plaintiff failed to present any evidence of disparate treatment. Plaintiff's bare assertion that similarly situated males were treated differently, without any substantiation or names, was insufficient to raise any issue of fact. Moreover, three similarly situated male employees were terminated for the same reason.
On February 7, 2014, the United States Equal Employment Opportunity Commission filed a lawsuit against CVS Pharmacy, Inc. in the United States District Court for the Northern District of Illinois in Chicago (EEOC v. CVS Pharmacy, Inc., No. 14 C 0863). The EEOC alleges that CVS's severance agreement is unenforceable because it unlawfully interferes with the right of employees to file discrimination charges and communicate/cooperate with the EEOC. The EEOC contends that this violates Section 707 of Title VII of the Civil Rights Act of 1964, which prohibits employer conduct that constitutes a pattern or practice of resistance to the rights protected by Title VII. The suit, which has been assigned to U.S. District Judge John W. Darrah, may significantly impact employers and employees as well as employment law practitioners.
The Seventh Circuit Court of Appeals recently held that a negative performance evaluation alone does not constitute actionable adverse employment action for a Title VII employment discrimination claim. Chaib v. State of Indiana, No. 13-1680 (7th Cir.), February 24, 2014. Due to the absence of the required element of materially adverse employment action, the Seventh Circuit affirmed the district court's grant of summary judgment in a Title VII case in which the plaintiff claimed that she was a victim of gender discrimination, national origin discrimination, and retaliation. In the opinion, the Seventh Circuit stated that, “Not everything that makes an employee unhappy is an actionable adverse action.”