I think we have the right sign for the Seventh Circuit this week. The same day that the court interred the rule against using an employee's "self-serving" testimony to resist summary judgment in employment-discrimination cases, another panel of the same court helps correct a lingering misunderstanding about what it means for an employee to use a "mosaic" of circumstantial evidence under Title VII - and also backs off a bit from a strict direct/indirect framework of proof enforced by that circuit. Such cases may help district courts reach more sensible decisions at the summary judgment stage.
The Seventh Circuit announces that it is overruling language in employment-discrimination cases going back over twenty years, and reminding courts that an employee's own testimony is, if otherwise relevant, admissible to resist summary judgment. Such testimony will no longer be excluded as "self serving."
The Seventh Circuit sends back for trial this Title VII religious-accommodation case, concerning a Nigerian employee's request for five weeks' leave time to attend his father's funeral overseas. One disputed issue was whether the employee clearly indicated a religious purpose for the voyage, where he said that "if he failed to lead the burial rites, he and his family members would suffer at least spiritual death."
An employee is informed by an employer health plan that surgery is approved, only to learn afterwards that the plan changed its mind and refused to pay over $77,000 in bills. The occasion of these simple and all-too-common facts gives the Seventh Circuit an opportunity to apply the recent U.S. Supreme Court decision Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011). It holds that Cigna "substantially changes our understanding of the equitable relief available under section 1132(a)(3)" and expands judicial options for remedies, including monetary relief.
Once again, a federal court of appeals is compelled to reverse summary judgment in a discrimination case where the employer brazenly offered no reason for its decision to terminate the plaintiff. The Seventh Circuit here remands claims of ADA discrimination and retaliation for an employee diagnosed with MS. (The ADA retaliation claim specifically concerns a manager who is openly resentful of the plaintiff's disability, all but accusing the plaintiff of malingering.) Judge David Hamilton, concurring, also explains why the common McDonnell Douglas method of proof may be backwards, essentially requiring the employee to guess at the employer's defense before it is offered.
The Seventh Circuit substantially affirms a judgment in favor of the EEOC on a hard-fought ADA reasonable accommodations case, concerning an employee forced to work beyond his medical restrictions. The judgment included an award of $100,000 in compensatory damages, $200,000 in punitive damages, and $115,000 in back pay, plus an injunction on AutoZone's anti-discrimination practices.
The Seventh Circuit issues a decision, in the context of a Title VII national-origin discrimination jury trial - which ended in a defense verdict - that the decision of whether to instruct the jury with a so-called "single-" or "mixed-" motive charge is for the judge, subject to review only for abuse of discretion. The decision will continue to fuel the on-going debate about the precise value of the 1991 Civil Rights Act "mixed-motive" section to employees.
The Seventh Circuit, per Judge Richard Posner, reminds the lower courts once again that private-sector employees do not have an administrative "exhaustion" requirement under Title VII, and that disputed issues of fact about limitations periods belong to a jury, not the judge.
While the Americans with Disabilities Act protects medical information about employees disclosed to an employer as a result of "medical examinations and inquiries," 42 U.S.C. § 12112(d), such protection is not infinitely elastic. The Seventh Circuit, affirming summary judgment in this ADA case, holds that the employer must "already kn[o]w something [i]s wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry." Fortunately for disabled employees, such circumstances are usually within their control if they are willing to come straight with their bosses about their work-related needs at the beginning of the relationship.
Employees who wish to tape record conversations at or about work should be forewarned that, in some jurisdictions, secret and unconsented recordings are not allowed. From Illinois - which treats such one-party recordings as a felony - comes a case where one co-worker sued another (and the co-worker's spouse, as well) for taping an enraged phone call and turning the recording over to the employer. The defendants prevailed on summary judgment because of an exception in the law for recordings made under a "reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against that person or a member of his or her immediate household."