This decision was an instant sensation in the news and social media: Title VII of the Civil Rights Act of 1964 held to protect employees from discrimination because of sexual orientation (and, presumably, gender identity as well). Digging into the majority and separate opinions, we can trace different possible outcomes when this question inevitably reaches the U.S. Supreme Court.
The Seventh Circuit affirms a jury award of $50,000 compensatory and $250,000 punitive damages in a Title VII retaliation case. The jury could have found, based on conflicting testimony, that the employer fired the plaintiff just two weeks after she filed an EEOC sex-harassment charge, based on an unsubstantiated complaint - reported by the alleged harasser himself - of a minor work-rule violation.
It's rare for a federal court of appeals to toss a defense jury verdict in an employment-discrimination case, and rarer still for the panel to order entry of a judgment in favor of a plaintiff. Yet both things happened in yesterday's Seventh Circuit decision, which held that a group of female paramedic applicants proved they were unlawfully screened out of employment due to an unreliable physical-skills entrance examination.
One way that employers go wrong under disability-discrimination laws is writing off an employee with diagnosed mental disabilities as simply a difficult personality or a poor "fit" for the job. Here, a special-education teacher with post-traumatic stress disorder (PTSD) - who was denied a transfer to a less-stressful position and fired for supposedly creating "so much unnecessary drama" with co-workers - will have a trial, thanks to a recent Seventh Circuit decision.
In a bid to restore common sense to the adjudication of Title VII and other employment cases, a panel of the Seventh Circuit (with the acquiescence of the full court) decisively overrules both the "convincing mosaic" and "direct vs. indirect" methods of proof. It urges instead the straight-forward application of the anti-discrimination standard: whether the plaintiff "would have kept his job if he [or she] had a different ethnicity, and everything else had remained the same."
The dubitante judicial opinion affirms a result, but casts suspicion on the underlying law or basic fairness of the decision. Two recent, split Title VII opinions fall into this category. The Seventh Circuit declined to overrule its decades' old precedent holding that Title VII does not cover sexual-orientation discrimination, and the D.C. Circuit applied its case law that denials of lateral transfers are generally not "adverse employment actions." Yet both opinions sow the seeds for future challenges to these questionable and unfair outcomes.
Here's a nice, short decision affirming a judgment of $25,200 in compensatory damages and $65,274.64 in back pay for an ADA plaintiff fired because of his insulin-dependent diabetes. The court underscores that the question of "essential function" under that statute is a factual one for a jury to resolve. And the court also holds that starting a business, even one that fails, is a valid method of mitigating damages.
One of the challenges recently facing groups of employees hurt by discriminatory employment practices has been to persuade courts to allow the entire controversy to be decided in a single class action. Today, the Seventh Circuit issued a decision that helps break down some of the barriers to effective class certification, in a case involving a city school board's policy of placing schools on suspension - primarily affecting minority neighborhoods - and firing teaching staff.
The Seventh Circuit offers some clarification for practitioners about some finer points of evidence and party declarations in the context of summary judgment. The panel reverses and remands for trial one plaintiff's claim (out of three) for Title VII retaliation. In particular, the court warns that under Federal Rule of Evidence 803(6), "[t]he mere act of producing a document in response to a discovery request based on the content of the document does not amount to an admission of the document's authenticity." (Italics in original.)
In an organization otherwise blanketed in paper, it raises eyebrows when the employer's complaints about a worker's performance find no support in the records. The Seventh Circuit vacates summary judgment in this pro se case, and remands for a trial of Title VII and § 1983 claims, where the performance-based reasons offered for a black teacher's termination were at odds with the employer's files and were bolstered mostly by sharply-disputed witness testimony.