On April 4, 2017, the 7th Circuit held that employment discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"). Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 4/4/2017) (rehearing en banc). This case was filed by an openly lesbian teacher who alleged that her employer failed to promote her or renew her contract on the basis of her sexual orientation. The district court dismissed her complaint on the ground that Title VII's prohibition against sex discrimination does not include discrimination on the basis of sexual orientation. On appeal, in an earlier decision, the 7th Circuit affirmed the district court, but later agreed to rehear the issue en banc. The 7th Circuit is the first federal appellate court to hold that sexual orientation discrimination is actionable under Title VII.
Title VII (Title VII of the Civil Rights Act of 1964, as amended)
On April 3, 2017, the United States Supreme Court delivered an opinion in which it discussed the authority of the Equal Employment Opportunity Commission ("EEOC"), under Title VII of the Civil Rights Act of 1964 ("Title VII"), to issue a subpoena to obtain evidence from an employer that is relevant to its investigation of a charge of employment discrimination. McLane Company, Inc. v. Equal Employment Opportunity Commission, 581 U.S. __ (2017). Title VII prohibits employment discrimination on the basis of race, color, religion, sex or national origin and provides the EEOC with enforcement authority. When a charge of discrimination is filed, the EEOC is required to notify the employer and conduct an investigation of the charge. It is authorized to issue, and seek enforcement from a district court, of a subpoena to obtain documents, data or witness testimony that is relevant to its investigation of the unlawful employment practices alleged in a charge.
On March 17, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a Title VII lawsuit in which a university professor alleged that her supervisors took several retaliatory actions against her because of her protected activities of reporting a student's complaint of sexual harassment against another professor and filing a charge of gender discrimination with the EEOC. Burton v. Board of Regents of the University of Wisconsin System, et al., No. 16-2982 (7th Cir. 3/17/2017). Title VII of the Civil Rights Act of 1964 ("Title VII") makes it unlawful for an employer to take materially adverse employment action against an employee because he or she engaged in statutorily protected activity such as reporting or opposing sexual harassment or another unlawful employment practice. To succeed on a retaliation claim, a plaintiff must produce enough evidence for a reasonable jury to conclude that: (1) she engaged in protected activity; (2) the employer took a materially adverse job action against her; and (3) there was a "but-for" causal connection between the protected activity and the adverse job action.
On January 13, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a wage discrimination lawsuit in which the plaintiff claimed that she was denied a pay increase and subjected to disparate pay on the basis of her age, sex and race, in violation of the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), and the Equal Pay Act ("EPA"). David v. Board of Trustees of Community College District No. 508, No. 15-2132 (7th Cir. 1/13/2017). She alleged that employees who were younger, non-African-American, or male were paid more than she was paid for equivalent work.
Here is a look back at 2016 7th Circuit employment law decisions, including significant trends and changes in employment law in the 7th Circuit, as well as a tally of decisions affirming and reversing summary judgments in employment law cases. Notably, in 2016, the 7th Circuit affirmed orders of summary judgment in 22 employment law cases, but reversed orders of summary judgment in only 5 employment law cases (10 calendar days remain, so the numbers may change). But as of this date the ratio is 4.4/1, i.e., 4.4 summary judgments were affirmed for every 1 summary judgment that was reversed. Put another way, of the 27 employment law summary judgments on appeal to the 7th Circuit in 2016, 81.5% were affirmed, while 18.5% were reversed. The 27 cases include employment discrimination, harassment, failure-to-accommodate, and retaliation claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act, Section 1981, the Illinois Human Rights Act, and Illinois common law.
On November 29, 2016, the 7th Circuit affirmed a jury verdict in a retaliatory discharge and sexual harassment case in which the jury awarded a terminated employee $250,000 in punitive damages and $57,000 in compensatory damages. Gracia v. Sigmatron International, Inc., No. 15-3311 (7th Cir. 11/29/2016). The plaintiff sued her former employer for sexual harassment and for terminating her in retaliation for reporting sexual harassment. The jury found in favor of the employer on the sexual harassment claim, but returned a verdict for the employee on the retaliation claim. The employee was an assembly line worker who was promoted several times and achieved the position of an assembly supervisor. She reported to Human Resources that her supervisor was sexually harassing her and filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission alleging sex and national origin discrimination. Six weeks after her first complaint to HR about her supervisor's sexual harassment and two weeks after the company received her EEOC Charge, the company terminated her employment.
On November 22, 2016, the Illinois Appellate Court, Fourth District, reversed a jury verdict in favor of a plaintiff after a jury trial on her employment discrimination claims under the Illinois Human Rights Act. Schnitker v. Springfield Urban League, Inc., 2016 IL App (4th) 150991 (11/22/2016). The plaintiff alleged that the defendant violated the Illinois Human Rights Act by failing to rehire her for a teaching position on account of her race (Caucasian) and religion (non-Pentecostal). She prevailed in a jury trial, at the conclusion of which she was awarded $100,000 in damages. The defendant appealed on the ground that the plaintiff's jury instructions inaccurately stated the law by not requiring the plaintiff to prove causation. The appellate court agreed.
On September 27, 2016, the 7th Circuit affirmed an order of summary judgment in a lawsuit in which an African-American employee alleged that he experienced a hostile work environment, including a hangman's noose in his workspace, as well as race discrimination and retaliation. Cole v. Board of Trustees of Northern Illinois University, No. 15-2305 (7th Cir. 9/27/2016). He sued asserting violations of Title VII of the Civil Rights Act of 1964 ("Title VII"). The plaintiff's hostile work environment claim failed because he did not establish a basis for employer liability for the alleged harassment. Workplace harassment that is sufficiently severe or pervasive to alter the terms and conditions of employment is actionable under Title VII as a claim of hostile work environment. To prove a claim for hostile work environment based on race, an employee must establish that: (1) he or she was subjected to unwelcome harassment; (2) the harassment was based on his or her race; (3) the harassment was severe or pervasive enough to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. In determining whether a work environment is sufficiently abusive to be actionable, courts consider whether the conduct is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance.
On October 19, 2016, the 7th Circuit reversed an order of summary judgment on Title VII and Illinois Human Rights Act ("IHRA") retaliation claims in which the plaintiffs alleged that the defendant refused to hire them as emergency medical technicians because of their prior sexual harassment complaints against interrelated business entities. Volling, et al. v. Kurtz Paramedic Services, Inc., No. 15-3572 (7th Cir. 10/19/2016). Under federal and Illinois law, it is unlawful for an employer to retaliate against an employee or job applicant because he or she engaged in protected activity such as opposing sexual harassment or any other unlawful employment practice of any employer. Illinois courts apply the federal Title VII framework to IHRA claims. To prevail on a Title VII retaliation claim, a plaintiff must establish that: (1) he or she engaged in a statutorily protected activity; (2) a materially adverse employment action was taken against him or her by the employer; and (3) there is a causal connection between the two. In the failure to hire context, a plaintiff must show that: (1) he or she engaged in protected activity; (2) he or she applied and had the technical qualifications required for the job position; (3) he or she was not hired for the position; and (4) a similarly situated individual who did not engage in protected activity was hired for the position.
On October 11, 2016, the 7th Circuit affirmed summary judgment on claims for race discrimination and retaliation. Williams v. Office of the Chief Judge of Cook County, Illinois, et al., Nos. 15-2325 & 15-2554 (7th Cir. 10/11/2016). The plaintiff, a probation officer who was told that she was fired for job abandonment, filed a lawsuit in which she alleged that she fired because of her race, in retaliation for complaining about racial harassment, and in retaliation for filing a workers' compensation claim. Under Illinois law, there is a common-law claim for retaliatory discharge when an employee is terminated in retaliation for exercising his or her rights under the Illinois Workers' Compensation Act (the "Act"). The employee must prove that he or she: (1) was an employee before the workplace injury; (2) exercised a right under the Act; and (3) that his or her discharge was causally related to the exercise of that right. That does not mean that an employer can never fire an employee who has filed a workers' compensation claim. An employer is not liable if its reason for the discharge is entirely unrelated to the employee's workers' compensation claim. The plaintiff claimed that the decision-maker fired her in connection with a dispute about her return-to-work date from her injury-related leave of absence. However, she failed to offer any evidence that the decision-maker knew of the dispute and, therefore, she could not establish the causal connection necessary to sustain her retaliation claim.