On July 30, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in an age and sex discrimination and retaliation lawsuit under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. Hamer v. Neighborhood Housing Services of Chicago, et al., No. 15-3764 (7th Cir. 7/30/2018). The plaintiff was passed over for a promotion in favor of a younger, male colleague. Believing that this adverse employment action constituted age and sex discrimination, she met with the Director of Human Resources, and informed her of her intention to file a charge of discrimination with the United States Equal Employment Opportunity Commission. Subsequent communications ensued between various managerial personnel regarding the non-promotion and related personnel issues in connection with the plaintiff, then employee, who was subsequently given an ultimatum to accept a demotion or resign her employment. She resigned, and filed an EEOC charge, followed by a federal lawsuit.
Title VII (Title VII of the Civil Rights Act of 1964, as amended)
On July 2, 2018, the 7th Circuit reversed an order of summary judgment on a hostile work environment claim in an lawsuit that involved multiple claims of race-based discrimination, harassment and retaliation. Robinson, et al. v. Perales, et al., Nos. 16-2291 & 16-3390 (7th Cir. 7/2/2018). To succeed on a claim for discrimination based on a hostile work environment, a plaintiff must demonstrate that: (1) she was subjected to unwelcome harassment; (2) the harassment was based on a protected category; (3) the harassment was severe or pervasive to a degree that altered the conditions of employment and created a hostile or abusive work environment; and (4) there is a basis for employer liability. In determining whether the conduct is severe or pervasive enough to alter the conditions of employment, courts consider the severity of the alleged conduct, its frequency, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance.
On June 27, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the defendant employer in a Title VII lawsuit in which the plaintiff former employee alleged that he was discriminated against and terminated on account of his religion and in retaliation for filing an EEOC charge. Khowaja v. Jefferson B. Sessions III, Attorney General of the United States, No. 18-1155 (7th Cir. 6/27/2018). The plaintiff alleged that he was unlawfully discriminated against and removed from his position as an FBI agent because he is a Muslim, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), that he was subjected to a hostile work environment and disparate treatment, and that he was unlawfully terminated for beginning the EEOC process. On appeal, he only challenged the district court's ruling on his first claim of religious discrimination and disparate treatment.
On June 19, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant employer in a federal lawsuit in which the plaintiff, former employee alleged that the defendant laid him off and failed to rehire him because of his race and in retaliation for his EEOC charge. Oliver v. Joint Logistics Managers, Inc., No. 17-1633 (7th Cir. 6/19/2018). The plaintiff sued his former employer under Section 1981 of the Civil Rights Act of 1866, alleging that it discriminated against him when it laid him off and when it hired another applicant to fill an open position. He also alleged that the employer retaliated against him because he filed a charge of discrimination with the EEOC. The 7th Circuit concluded that the plaintiff failed to present essential evidence in support of each of his claims.
On June 15, 2018, the 7th Circuit affirmed an order of the district court which entered summary judgment in favor of a defendant employer in a Title VII lawsuit in which the plaintiff employee alleged that she was subjected to unlawful retaliation for filing a prior employment discrimination lawsuit. Flanagan v. Office of the Chief Judge of the Circuit Court of Cook County, Illinois, No. 16-1927 (7th Cir. 6/15/2018). The plaintiff alleged that two coworkers threatened her life because she had previously sued their shared employer for employment discrimination and retaliation. She filed a new lawsuit under Title VII claiming illegal retaliation based on an alleged hostile work environment in connection with the alleged threats. The 7th Circuit ruled that the alleged threats were too oblique for a jury to conclude that the plaintiff was subjected to severe or pervasive harassment.
On June 8, 2018, the 7th Circuit reversed an order of the district court which had awarded the prevailing defendant, CVS Pharmacy, Inc. ("CVS") its attorneys' fees against the United States Equal Employment Opportunity Commission ("EEOC"), in the wake of the EEOC's unsuccessful attempt to challenge the validity and enforceability of CVS's standard employee severance agreement and release. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 17-1828 (7th Cir. 6/8/2018). The EEOC filed a complaint against CVS alleging that CVS was using a severance agreement that chilled its employees' exercise of their rights under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). The EEOC contended that CVS's use of the severance agreement was a pattern or practice of resistance to the rights protected by Title VII. The district court ruled against the EEOC on this issue and the 7th Circuit affirmed. Subsequently, the district court awarded CVS $307,902.30 in attorneys' fees against the EEOC.
On June 8, 2018, the 7th Circuit affirmed an order of summary judgment on Title VII race discrimination claims, but reversed summary judgment as to hostile work environment race-based workplace harassment claims. Johnson, et al. v. Advocate Health and Hospitals Corp., No. 16-3848 (7th Cir. 6/8/2018). The plaintiffs claimed that they were treated unfairly based on their race. The district court granted the defendant's motion for summary judgment, finding that the plaintiffs failed to offer evidence necessary to support their claims. The 7th Circuit agreed with the district court on all issues except the hostile work environment claims. Despite doing away with the separate direct and indirect evidence tests and convincing mosaics, the 7th Circuit still uses the traditional McDonnell Douglas burden-shifting evidentiary framework for evaluating employment discrimination claims. Under McDonnell Douglas, a court considers whether the plaintiffs: (1) are members of a protected class; (2) performed reasonably on the job in accordance with their employer's legitimate expectations; (3) were subjected to adverse employment action despite their reasonable performance; and (4) similarly situated employees outside of the protected class were treated more favorably by the employer.
On May 21, 2018, the United States Supreme Court, in a landmark employment law decision, held that arbitration agreements providing for individualized arbitration proceedings to resolve labor disputes must be enforced. Epic Systems Corp. v. Lewis, 584 U.S. __ (2018). Justice Gorsuch wrote the majority opinion, in which Justices Roberts, Thomas, Alito and Kennedy joined. The case involved employers and employees who entered into employment contracts providing for individualized arbitration proceedings to resolve employment law disputes. The employees nonetheless sought to litigate Fair Labor Standards Act ("FLSA") wage and hour claims through class or collective actions in federal court. The Federal Arbitration Act ("FAA") generally requires courts to enforce arbitration agreements according to their terms unless they are invalid under contract law. However, the employees argued that the FAA's savings clause removes the requirements to enforce arbitration agreements if the arbitration agreement violates some other federal law; and that by requiring individualized arbitration proceedings to resolve wage and hour claims, which would preclude employees' rights to litigate labor claims on a class-wide or collective basis, the arbitration agreements violated the National Labor Relations Act ("NLRA") and therefore are invalid and unenforceable. The majority rejected the employees' arguments, stating that the employment law arbitration agreements "must be enforced" and that "neither the Arbitration Act's savings clause nor the NLRA suggest otherwise."
On April 26, 2018, the 7th Circuit held that the disparate impact provision of the Age Discrimination in Employment Act ("ADEA") protects both outside job applicants and current employees from employment practices that have a disparate impact on older workers. Kleber v. CareFusion Corporation, No. 17-1206 (7th Cir. 4/26/2018). The ADEA prohibits employment practices that discriminate intentionally against older workers as well as employment policies that are facially neutral but have a disparate impact on older workers. In this case, the 7th Circuit recognized a cause of action under the ADEA for disparate impact failure-to-hire, in the context of a hiring policy which limited the applicant pool for an attorney position to applicants with three to seven years (but no more than seven years) of legal experience.
On March 8, 2018, the 7th Circuit affirmed an order of summary judgment in favor the defendant in a lawsuit in which the plaintiff alleged that his former employer unlawfully discriminated against him on the basis of his age and national origin, as well as retaliated against him for complaining about a supervisor, in violation of the Age Discrimination in Employment Act ("ADEA") and Title VII of the Civil Rights Act of 1964 ("Title VII"), by failing to promote him to various positions and ultimately demoting him. Skiba v. Illinois Central Railroad Company, No. 17-2002 (7th Cir. 3/8/2018). To survive a motion for summary judgment on a retaliation claim, a plaintiff must offer evidence of: (1) statutorily protected activity; (2) materially adverse job action; and (3) a causal connection between the two. The 7th Circuit concluded that the plaintiff did not engage in any statutorily protected activity when he complained about a supervisor's harsh management style.