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.
Title VII (Title VII of the Civil Rights Act of 1964, as amended)
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.
On December 27, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a lawsuit in which the plaintiff alleged that the defendant terminated his employment because of his race, national origin, disability, and exercise of his right to take leave under the Family and Medical Leave Act ("FMLA"). Ennin v. CNH Industrial America, LLC, No. 17-2270 (7th Cir. 12/27/2017). The record indicated that the defendant terminated the plaintiff's employment before it had knowledge of his alleged disability or his FMLA leave; and there was no evidence that the defendant's proffered reasons for the termination were pretext for employment discrimination.
On December 11, 2017, the 7th Circuit affirmed an order of summary judgment in a sex discrimination lawsuit in which the plaintiff alleged that her former employer fired her on the basis of her gender, in violation of Title VII. Milligan-Grimstad v. Morgan Stanley, et al., No. 16-4224 (7th Cir. 12/11/2017). The 7th Circuit agreed with the district court, that the defendant terminated the plaintiff on the basis of her job performance. To survive a motion for summary judgment in a Title VII employment discrimination case, a plaintiff must present evidence that would permit a reasonable jury to conclude that the plaintiff's race, ethnicity, sex, religion or other proscribed factor caused the discharge. In this case, the plaintiff failed provide a sufficient evidentiary basis for a jury to conclude that her sex influenced the decision to terminate her employment.
On November 30, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a lawsuit in which the plaintiff alleged that she was paid substantially less than her male colleague, despite taking on twice the responsibility, in violation of the Equal Pay Act ("EPA") and Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). Lauderdale v. Illinois Department of Human Services, et al., No. 16-3830 (7th Cir. 11/30/2017). The EPA and Title VII both prohibit employers from paying an employee less based on sex. The 7th Circuit concluded that the pay discrepancy in this case was not based on sex.
On November 15, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a Title VII reverse race discrimination lawsuit filed by a civil servant against his former employer, the Office of the Chief Judge of Cook County, Illinois. Golla v. Office of the Chief Judge of Cook County, Illinois, et al., No. 15-2524 (7th Cir. 11/15/2017). The plaintiff alleged that the defendant engaged in intentional reverse racial discrimination by paying an African-American co-worker a significantly higher salary than him, a Caucasian, even though they worked in the same department performing the same duties under essentially the same title.
On October 2, 2017, the 7th Circuit affirmed an order of summary judgment on a former employee's sexual harassment, retaliation and FMLA claims. King v. Ford Motor Company, No. 16-3391 (7th Cir. 10/2/2017). The plaintiff, who was an assembly line worker, claimed that she was sexually harassed by a supervisor. She was discharged after missing several weeks of work for medical reasons that her former employer claims she failed to properly document. In her federal lawsuit, she filed claims for sexual harassment, FMLA interference, and retaliation based on her complaints of sexual harassment and for taking FMLA leave. Since she failed to file suit within 90 days of receipt of her notice of right-to-sue letter from the EEOC, her Title VII sexual harassment claim was time-barred. Her FMLA interference and retaliation claims failed too, for substantive reasons.