On September 19, 2016, the 7th Circuit remanded disparate treatment and disparate impact sex discrimination claims after a jury trial based on erroneous jury instructions and an unreliable physical-skills study. Ernst v. City of Chicago, No. 14-3783 & 15-2030 (7th Cir. 9/19/2016). This lawsuit was filed by a group of women who applied unsuccessfully to work as paramedics for the City of Chicago (the "City"). All five women were denied employment because they failed the City's physical-skills entrance exam. Title VII of the Civil Rights Act of 1964, as amended ("Title VII") prohibits two types of discrimination: (1) intentional discrimination based on a protected status such as gender, which is called disparate treatment; and (2) employment practices that have a disproportionately adverse impact on employees who belong to a protected class, even if the impact is unintended, which is called disparate impact.
Title VII (Title VII of the Civil Rights Act of 1964, as amended)
Judge Rovner published an important dissenting opinion in Lord v. High Voltage Software, Inc., No. 13-3788 (7th Cir. 10/5/2016), in which the 7th Circuit affirmed the grant of summary judgment in favor of an employer in a same-sex sexual harassment and retaliation case. Judge Rovner dissented as to the majority decision affirming the grant of summary judgment on the retaliation claim, which essentially held that an employee cannot allege retaliation for reporting sexual harassment when the employer required him to report harassment immediately and he reported it only days later. In other words, if an employee fails to comply with employer-imposed reporting restrictions, the employer can terminate the employee for reporting the harassment with no recourse for the employee to Title VII retaliation protections. The holding, according to Judge Rovner, will encourage employers to establish unreasonable time and manner restrictions on the reporting of sexual harassment and place "handcuffs on Title VII retaliation claims, with the employers holding the keys."
On October 5, 2016, the 7th Circuit affirmed the district court's order granting summary judgment in favor of an employer in a same-sex sexual harassment lawsuit. Lord v. High Voltage Software, Inc., No. 13-3788 (7th Cir. 10/5/2016). The Plaintiff, a male employee, claimed that he was sexually harassed by a male coworker and fired in retaliation for complaining about it, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"). The employer claimed that the conduct of which the plaintiff complained was not sexual harassment, and that it fired him for other reasons, including his failure to immediately report the conduct that was objectionable to him. The majority opinion agreed with the district court that the conduct complained of, which consisted of repeated unwelcome physical contact in personal areas of the body, was not based on the plaintiff's sex, male, and that he did not raise issue with the sincerity of the defendant's explanation for its termination of his employment.
On September 6, 2016, the 7th Circuit affirmed a jury verdict in favor of a defendant employer in a lawsuit in which the plaintiff, a former employee, alleged that the employer fired her for taking or requesting leave under the Family and Medical Leave Act ("FMLA"), in violation of the FMLA. Arrigo v. Jay E. Link, et al., Nos. 13-3838 & 14-3298 (7th Cir. 9/6/2016). After a trial in federal court, the jury returned a verdict for the defendant. The plaintiff appealed on various evidentiary and procedural grounds. Among other things, she contended that the district court erred by excluding from evidence her supervisor's notes from a meeting about her return from medical leave. The 7th Circuit concluded that the district court was correct in excluding the notes as irrelevant to the FMLA claim because they did not imply an unlawful motive. The notes, which contained explicit references to the plaintiff's medical conditions (arguably disabilities under the Americans with Disabilities Act ("ADA")), would likely have been relevant and admissible in an ADA disability discrimination lawsuit to demonstrate a disability-based discriminatory animus; but the plaintiff's ADA claim had been thrown out of court on procedural grounds before trial.
On August 26, 2016, the 7th Circuit affirmed the district court's entry of summary judgment in favor of the defendant-employer in a lawsuit in which the plaintiff, a hospital security guard, claimed that he was fired because of his race, African-American, in violation of Title VII of the Civil Rights Act of 1964. Lane v. Riverview Hospital, No. 15-1118 (7th Cir. 8/26/2016). The hospital claimed that it terminated his employment as a result of an alleged incident involving his interaction with a patient. The question was whether he offered enough evidence to allow a reasonable jury to infer that he would not have been fired if he were not African-American and everything else remained the same. The plaintiff argued that a similar incident involving a Caucasian security guard, who was not fired or disciplined as a result of the incident, raised an inference of discrimination.
On August 19, 2016, the 7th Circuit reversed the district court's entry of summary judgment in an employment discrimination claim under Section 1981 and the Illinois Human Rights Act. Ortiz v. Werner Enterprises, Inc., No.15-2574 (7th Cir. 8/19/ 2016). The plaintiff worked as a freight broker for the defendant for seven years until he was discharged. The defendant claims that it fired the plaintiff for falsifying business records. The Plaintiff claims that the defendant fired him because of his Mexican ethnicity. He also claims that he was subjected to a hostile work environment in the form of ongoing ethnic slurs throughout his employment that increased in frequency and intensity in the months leading up to his discharge.
On July 28, 2016, the 7th Circuit affirmed the dismissal of a sexual orientation discrimination claim for failure to state a cause of action under Title VII, and held that employment discrimination based on sexual orientation or sexual preference is not covered by Title VII's prohibition against discrimination on the basis of sex. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. 7/28/2016). A lesbian part-time professor filed this case under Title VII alleging that the college denied her full-time employment on the basis of her sexual orientation. The college filed a motion to dismiss on the ground that sexual orientation is not a protected classification under Title VII. The district court agreed. In a lengthy opinion, the 7th Circuit clarified that sexual orientation discrimination is outside of the scope of and therefore not unlawful under Title VII. The 7th Circuit's decision addresses and rejects the (opposite) position advanced by the EEOC, that sexual orientation discrimination constitutes unlawful sex discrimination under Title VII.
On July 21, 2016, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in a lawsuit in which a federal employee alleged that his lack of promotion or salary increase was discriminatory on the basis of his race and sex, that he was subjected to unlawful retaliation for complaining about it, and that he was subjected to a hostile work environment. Poullard v. McDonald, Secretary, U.S. Department of Veterans Affairs, No. 15-1962 (7th Cir. 7/21/2016). In the Title VII disparate-pay context, the question is whether a plaintiff may show equal work for unequal pay based on his or her protected class. The federal employee's pay discrimination claim failed because he did not identify a similarly situated employee outside of his protected classes who was paid more for the same work. It was difficult for the plaintiff to argue that his supervisor was similarly situated, especially where the supervisor had more work experience and a higher grade level.
On July 22, 2016, the 7th Circuit affirmed an order of summary judgment on claims alleged by a teacher that she was not promoted to various positions because of her gender, race and age, in violation of Title VII, Section 1981, and the ADEA. Riley v. Elkhart Community Schools, No. 15-3166 (7th Cir. 7/22/2016). The district court correctly held that the plaintiff failed to produce sufficient evidence for any of her claims to survive summary judgment. To proceed to trial on a failure to promote claim, a plaintiff must produce sufficient direct or circumstantial evidence that the employer's promotion decisions were intentionally discriminatory or make an indirect case of employment discrimination under the burden-shifting method. To demonstrate a prima facie case of failure to promote, a plaintiff must produce evidence showing that: (1) she was a member of a protected class; (2) she was qualified for the position sought; (3) she was rejected for the position; and (4) the employer promoted someone outside of the protected class who was not better qualified for the position.
On July 14, 2016, the 7th Circuit reversed the dismissal of a Title VII retaliation claim. Hatcher v. Board of Trustees of Southern Illinois University, et al., No. 15-1599 (7th Cir. 7/14/2016). The plaintiff, a university professor, claimed that she was denied tenure on the basis of her gender and in retaliation for filing a charge of gender discrimination against the university with the EEOC. The university contended that it denied her tenure because she allegedly produced insufficient scholarship. The district court dismissed the retaliation claim for failure to state a cause of action. The 7th Circuit held that her complaint stated a plausible Title VII retaliation claim for filing her charge with the EEOC.