The court revived the complaint of plaintiff Kimberly Hively in which she alleged that she was fired from a part-time job and not hired for multiple full-time positions because she is a lesbian. The majority opinion, written by Judge Diane Wood, reasoned that if all facts were the same but her sex—that is, if plaintiff had been a man married to a woman—she would have been hired, and thus had suffered “paradigmatic sex discrimination.” Hively at *5. The court also held that sexual orientation discrimination “represents the ultimate case of failure to conform to the female stereotype”. Id. (Dissent filed).
The Seventh Circuit, sitting en banc, held that sexual orientation discrimination in employment is a subset of sex discrimination, and thus barred by Title VII. Hively v. Ivy Tech Comm. Coll. of Indiana, No. 15-1720, (7th Cir. April 4, 2017).
The court revived the complaint of plaintiff Kimberly Hively in which she alleged that she was fired from a part-time job and not hired for multiple full-time positions because she is a lesbian. The majority opinion, written by Judge Diane Wood, reasoned that if all facts were the same but her sex—that is, if plaintiff had been a man married to a woman—she would have been hired, and thus had suffered “paradigmatic sex discrimination.” Hively at *5. The court also held that sexual orientation discrimination “represents the ultimate case of failure to conform to the female stereotype”. Id. (Dissent filed).
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Plaintiff sued under the ADEA, Title VII and Equal Pay Act, alleging that she was denied a pay increase and title change because of her race, gender and age in the year prior to her announced retirement. David v. Bd. of Trustees of Community College Dist. No. 508, No. 15-2132 (7th Cir. January 13, 2017). The employer moved for summary judgement and the District Court granted it. The Seventh Circuit affirmed. The Seventh Circuit held that while the plaintiff claimed that younger, non-African-American co-workers were paid more for equivalent work, she failed to show that the co-workers was similarly-situated as the co-workers performed different additional duties and, unlike the plaintiff, they had college degrees and performed tasks that required their college degree. The Seventh Circuit also rejected plaintiff's discrimination claim based on the defendant's delay in processing her request for new job title and more pay arising out of her assumption of new duties, because: (1) the plaintiff failed to present evidence that the process for changing her title could have been accomplished prior to her announced retirement date; and (2) the plaintiff failed to present evidence to refute the defendant's claim that her assumption of additional duties constituted only a lateral change in jobs. Finally, the fact that the decision-maker made a comment regarding the plaintiff's impending retirement date did not constitute evidence of age discrimination, since: (1) comments about retirement eligibility are not necessarily age-based; and (2) decision-maker was merely commenting on plaintiff's previously announced status as "short-timer." Unsuccessful female applicants for paramedic positions at the City's Fire Department sued under Title VII for gender discrimination, alleging that the City denied the women's applications because of their gender, where they had failed the City's physical-skills entrance examination. Ernst v. City of Chicago, Nos. 14-3783 & 15-2030 Cons. (7th Cir., September 19, 2016). On appeal, the Seventh Circuit held that the plaintiffs were entitled to new trial on their Title VII, disparate treatment action. The Seventh Circuit held that the District Court gave jury an erroneous instruction that failed to address the plaintiff's allegation that the City had anti-female motivation in creating a skills test that favored male applicants. The District Court also found that the plaintiffs were entitled to judgment on their disparate impact claim, where: (1) the City conceded that skills test had disparate impact on female applicants; and (2) under federal requirements for validity studies under 29 CFR section 1607.14(B)(14), the City failed to establish either that its physical-skills entrance test reflected important elements of paramedic's job performance, or that there was connection between real jobs test and job skills contained in defendant's physical skills test. Plaintiff sued under Section 1983, alleging that defendants denied her a promotion to drug inspector position because of her sex. McCurdy v. Fitts, No. 15-1212 (7th Cir. June 13, 2016). Defendants moved for summary judgment. The District Court granted the motion. The Seventh Circuit affirmed and vacated in part and remanded. The record showed that defendants had conducted a background check of plaintiff, which revealed that she had: (1) recently filed for bankruptcy and (2) a long-term relationship with a person who belonged to biker gang that had been associated with criminal activity. However, the plaintiff claimed that the defendant did not conduct such checks with male applicants. Further, the prior male individual in the job had also experienced financial difficulties and had associated with criminal associates, and was fired because he had stolen from defendants. Seventh Circuit held that employers are entitled to learn from their prior hiring errors when considering current applicants, and record showed that relevant decision-maker conducted similar background checks on male applicants. However, remand was required with respect to plaintiff's claim that she lost money during time that defendants took to conduct the background check to extent that defendants would have temporarily promoted plaintiff to position during that time, where defendants conceded that it had immediately promoted male applicants pending results of their background checks. Today, June 14, 2016, the U.S. Department of Labor issued a rule to revise sex discrimination guidelines for federal contractors. The rule clarifies protections against compensation discrimination, sexually hostile work environments, discrimination based on pregnancy, childbirth, or related medical conditions. It also updates guidelines to prohibit contractors from granting child care leave to women but not men. Further, it clarifies that Title VII’s prohibition of employment discrimination based on sex encompasses discrimination based on gender identity, unlawful sex stereotypes, and transgender status. These rules have been largely unchanged since 1970. A fact sheet and the text of the Rule is at https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-13806.pdf. Employee, a deputy-sheriff, sued under Title VII, alleging that she was fired because of her gender. Kuttner v. Zaruba, No. 14-3812 (7th Cir., April 14, 2016). The employer moved for summary judgment, which the District Court granted. The Seventh Circuit affirmed. The Seventh Circuit held that the record showed that the deputy-sheriff was fired after attempting to collect on a loan for a friend while wearing her uniform and badge. The plaintiff argued that four male co-workers committed similar misconduct and were not fired. However, the District Court could properly find that none of the comparative co-workers were similarly-situated, as the misconduct did not concern an improper projection of coercive police authority. Additionally, the District Court did not err in limiting scope of plaintiff's discovery requests of co-worker personal files to files going back to January 1, 2006, finding that: (1) plaintiff had sought overly-broad requests for co-worker personnel files that included the Sheriff's wife; (2) the time restriction served to hone in possible comparative co-workers; and (3) the time limitation was adequate to allow her to engage in meaningful discovery. However, Judge Posner dissented, explaining that if she could prove her allegations, she would be "well on her way to proving sex discrimination" but that she was prevented from doing so by "an arbitrary discovery cut-off." He further noted that when the plaintiff went to the borrow's home, she was "at least partially in uniform (a potentially significant qualification ignored in the majority opinion . . . )" and she left a business card for her off-duty business "Team in Focus, DC International." Further, the record showed that the plaintiff identified more than 21 favored males, but the "plaintiff's lawyer was prevented from trying to establish the truth" because of the cut-off date. Plaintiff sued her employer for violations of Title VII, alleging that she was fired because of her gender, race and national origin. Chaib v. The GEO Group, Inc., No. 15-1614 (7th Cir., April 6, 2016). The employer moved for summary judgment and the District Court granted the motion. The Seventh Circuit affirmed.
The Seventh Circuit held that the record showed that the employer fired the plaintiff after discovering through video surveillance that plaintiff had improperly extended her medical leave by exaggerating her alleged impairment. While the plaintiff alleged that she was subjected to series of racially offensive conduct from her co-workers, she failed to link those individuals to the decision by management to fire her based on her own misconduct. Furthermore, the plaintiff could not establish a prima facie discrimination case based on indirect method of proof, where she could not show either that her misconduct was consistent with defendant's employment expectations, or that others accused of similar misconduct received more favorable treatment. Plaintiff sued in Title VII, alleging that defendants terminated her surgical privileges and denied her reappointment as surgeon at Cook County's Stroger Hospital because of her race, sex and national origin. Liu v. Cook County, No. 14-1775 (7th Cir., March 15, 2016). Defendants moved for summary judgment. The District Court granted the motion. The Seventh Circuit affirmed. The record showed that Defendants explained that the termination was based on the plaintiff's repeated failure to operate on patients having bouts of appendicitis in spite of management's directives to do so, and plaintiff failed to establish that defendants' explanation was unworthy of belief, as record showed that several of plaintiff's patients suffered because of plaintiff's failure to timely operate on their appendix. The fact that the plaintiff disputed the medical basis for management's directive did not create genuine factual dispute that could only be resolved by jury given existence of patients who suffered from plaintiff's delay or failure to operate at all. Plaintiff also failed to show that defendants treated similarly-situated surgeons more favorably after giving said surgeons specific instructions regarding course of patients' medical treatment. Igasaki, a former Illinois state employee, sued the Illinois Department of Financial and Professional Regulations (IDFPR) for sex discrimination and retaliation, among other things. Igasaki v. Ill. Dep't of Financial and Professional Regulation, et al., No. 15 C 3693, (N.D. Ill., January 20, 2016). Igasaki claimed that his homosexuality was a factor in his firing, and further asserted that the factor resulted in sex discrimination. Defendants moved to partially dismiss the complaint which included the sex discrimination claim. Judge Andrea Wood dismissed the sex discrimination claim without prejudice, explaining that sexual orientation “is not a protected class under Title VII.” Hamner v. St. Vincent Hospital & Health Care Center Inc., 224 F.3d 701 (7th Cir. 2000). However, Title VII protects victims of “sex stereotyping” or “gender stereotyping.” Hamm v. Weyauwega Milk Products Inc., 332 F.3d 1058 (7th Cir. 2003). Igasaki alleges he was criticized for being “too soft” and “not aggressive enough”but only alleges these type of comments only after Forester learned he is gay. Thus, those complaints are on the basis of his sexual orientation. While Title VII may not protect against sexual orientation discrimination, it should be noted that the Illinois Human Rights Act prohibits sexual orientation discrimination. Employee brought suit claiming that the defendant failed to promote her to a Program Analyst position that she was actually performing for less pay than her male co-workers in violation of Title VII (failure to promote and retaliation) and the Equal Pay Act. Jaburek v. Foxx, No. 15-2165 (7th Cir., January 13, 2016). Defendant moved for summary judgment and the District Court granted it. The Seventh Circuit affirmed. The Seventh Circuit held that while the employee advised her supervisor of the nature of her expanded job duties and that she was acting as a Program Analyst, she failed to show that she ever formally applied for a Program Analyst position, or that proposed comparable co-workers received said position instead of her. Also, the employee failed to establish viable Equal Pay Act claim, where none of her three comparable co-workers were in same geographic office as her, and where she failed to provide a description of their job duties. Finally, the employee failed to state viable retaliation claim arising out of her supervisor's removal of her Program Analyst duties, where her only potential evidence of "protest" was request for desk audit of her job, which was not act of opposition to prohibited discrimination to support any retaliation claim. |
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