There are several lessons in this Seventh Circuit decision, reviewing a summary judgment and jury verdict in a Title VII and § 1983 case involving state university police officers. First, the court continues to consider the use of the N-word in the workplace to be virtually per se racial harassment. Second, the filing of false reports against an employee may be deemed a materially adverse action, for purposes of retaliation. Third, even if the law mandates strict liability against an employer for retaliation by a supervisor, the jury must still be instructed on the theory or it may be waived.
The Seventh Circuit creates a split with the Eleventh Circuit, holding that job applicants may bring claims for disparate impact under the ADEA under 29 U.S.C. § 623(a)(2). The panel majority allows a challenge to an employer's classification of an in-house Senior Counsel position as "3 to 7 years (no more than 7 years) of relevant legal experience."
The Seventh Circuit reverses and remands a Title VII claim for trial that it describes as a potentially "strong case of race discrimination." In particular, it reminds district courts that the "same actor" inference - that a manager who hires Black employees is unlikely to be biased against them - is at most an argument for trial, not a rule for deciding summary judgment.
The Seventh Circuit decides a couple of useful things in this Title VII and § 1983 national-origin discrimination, harassment, and retaliation case, set in a City of Chicago firehouse. First, it holds that even petty activity such as lunch-stealing may constitute part of a hostile work environment when the entire pattern of conduct is considered together. Second, even such tedious activities as constantly shifting an employee from site to site, and intensively challenging fitness for duty after medical leave, may constitute materially adverse employment actions.
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.