The Seventh Circuit acknowledged that EEOC rulings indicate that sexual orientation discrimination is form of actionable sex discrimination claim under Title VII and acknowledged the difficulty in discerning difference between actionable gender norm discrimination from non-actionable sexual orientation discrimination under Title VII. However, the Seventh Circuit reaffirmed its prior case law in finding that plaintiff's sexual orientation discrimination claim is beyond scope of Title VII, since Title VII's prohibition on discrimination based on "sex" extends only to discrimination based on person's "gender" and not on person's "sexual orientation."
Plaintiff-employee brought a Title VII claim alleging that her employer denied her full time employment as adjunct professor and failed to promote her to various positions on account of her sexual orientation. Hively v. Ivy Tech Community College, S. Bend, No. 15-1720 (7th Cir. July 28, 2016). The employer moved to dismiss for failure to state a valid claim. The District Court granted the motion and the Seventh Circuit affirmed.
The Seventh Circuit acknowledged that EEOC rulings indicate that sexual orientation discrimination is form of actionable sex discrimination claim under Title VII and acknowledged the difficulty in discerning difference between actionable gender norm discrimination from non-actionable sexual orientation discrimination under Title VII. However, the Seventh Circuit reaffirmed its prior case law in finding that plaintiff's sexual orientation discrimination claim is beyond scope of Title VII, since Title VII's prohibition on discrimination based on "sex" extends only to discrimination based on person's "gender" and not on person's "sexual orientation."
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Plaintiff Riley sued under Title VII, the ADEA, and section 1981, alleging that the defendant failed to promote her to assistant principal and other positions because of her race, sex and age. Riley v. Elkhart Community Schools, No. 15-3166 (7th Cir. July 22, 2016). The School moved for summary judgment and the District Court granted the motion. The Seventh Circuit affirmed.
The record showed that the School hired an African-American candidate for a assistant principal position, thus Riley, also African-American, could not assert a section 1981 claim for that position shared a successful candidate's race. Next, as to the two academic dean positions, Riley failed to apply, so she could not assert discrimination claims as to those positions. Third, Riley did not prove a prima facie case on her failure to promote claim regarding the Blazer Connection coordinator position, because being rejected for the position does not constitute a materially adverse employment action where she failed to show how the position represented significant pay rate increase, increase in responsibilities or boost in title. With respect to remaining positions, Riley failed to produce evidence of pretext. She failed to show that the School's reason for selecting successful candidates, that said candidates were more qualified, was unworthy of belief. The fact that Riley had more teaching experience than successful candidates did not require different result since: (1) the successful candidates had more administrative experience; and (2) to defendant, length of service was the least important factor. Plaintiff sued for race and gender discrimination, alleging that the VA Medical Center failed to promote him or increase his salary because of his gender and race, even though defendant had increased plaintiff's duties; and that he was subjected to hostile work environment. Poullard v. McDonald, No. 15-1962 (7th Cir. July 21, 2016). Defendants moved for summary judgment. The District Court granted the motion, holding that many of Poullard’s claims were time-barred based on his failure to timely exhaust administrative remedies. On the timely claims, the District Court held that Poullard had not suffered an adverse employment action and that a reasonable jury could not find that the alleged harassment was sufficiently severe or pervasive to support a hostile work environment claim. The Seventh Circuit affirmed, holding that the evidence did not support a claim for unlawful discrimination, retaliation, or harassment. More specifically, Plaintiff failed to formally apply for a promotion and failed to identify any similarly situated co-worker who was paid at same level but did not have increased management tasks. Further, the Plaintiff also failed to establish a viable retaliation claim where the alleged retaliatory acts, that included unfulfilled threats of discipline and letter of admonishment, were too tepid to constitute material adverse acts. Finally, the Plaintiff's claim of racial harassment based on statements to the plaintiff such as management intended to "get monkeys off backs of management," and calling Plaintiff a "sugar daddy," did not constitute actionable harassment since they either referred to non-racial matters or were ambiguous. Plaintiffs (servers) brought an FLSA action against their employer, alleging that: (1) their employer improperly paid tip-credit rate for job duties that did not relate to normal server duties, and (2) their employer violated the FLSA by failing to give them sufficient information to allow the employer to pay them "tip-credit" rate. Schaefer v. Walker Bros. Enterprises, Inc., No. 15-1058 (7th Cir. July 15, 2016). The restaurants 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 plaintiffs spent, at most, between 10 to 45 minutes per day on non-server duties such as cleaning the restaurant and restocking supplies. The Department of Labor regulations permit defendant to pay reduced tip-credit wage for said duties, where these duties represented less than 20 percent of plaintiffs' time and were sufficiently related to their server duties. Also, the employer gave the plaintiffs sufficient information about the "tip-credit" rate through the employer's handout, handbook, and poster in restaurants regarding rules governing tip-credit wages, where defendants: (1) informed the plaintiffs that the defendants would initially pay them less than minimum wage; (2) calculated the applicable tip-wage; and (3) informed the plaintiffs that if their tips plus wages did not match current minimum wage, that defendants would make up difference. The fact that defendants misstated the applicable minimum wage in their materials did not require a different result. Plaintiff, an assistant professor, brought a Title VII and Section 1983 action alleging against her employer, alleging that the university denied her application for promotion to associate professor and for tenure because of her gender and in retaliation for assisting student with student's sexual harassment report. Hatcher v. Bd. of Trustees of Southern Illinois Univ., No. 15-1599 (7th Cir. July 14, 2016). The university moved for summary judgment and the District Court granted the motion. The Seventh Circuit affirmed in part and reversed in part and remanded. The Seventh Circuit held that the District Court erred in dismissing Plaintiff's retaliation claim for failure to state viable action where she claimed that the university denied her tenure in retaliation for having filed an EEOC charge, and where the complaint adequately alleged that she filed that charge within two months prior to final decision denying her tenure request. However, the Seventh Circuit held that the Plaintiff could not prevail on any Title VII retaliation claim based on her support of a student's sexual harassment report since the student was not employee of the university, so the plaintiff could not show that she was opposing any unlawful employment action. The Plaintiff also could not establish 1st Amendment retaliation, since she provided the student assistance as part of her faculty duties, not as private citizen. Also, while the university granted tenure to two male co-workers at same time that the plaintiff was denied tenure, she failed to demonstrate that the relevant decision-maker's stated reason for her denial of tenure, her failure to demonstrate excellence in academic research, was unworthy of belief, especially where the decision-maker based her determination on findings made by a tenure-review committee. Plaintiff, an associate professor, brought a Section 1981 action, alleging that a defendant-university colleague retaliated against her for complaining about anti-Jewish discrimination in workplace. Shott v. Katz, No. 15-3528 (7th Cir. July 11, 2016). The District Court dismissed the complaint for failure to state cause of action. The Seventh Circuit affirmed. The Plaintiff alleged that the retaliation took form of defendant (1) rebuffing her invitations to collaborate on research articles and (2) requiring her to submit to physical examinations every six months in order to obtain prescription refills to treat her medical condition. The Seventh Circuit held that those alleged adverse acts were not materially adverse, where there was no allegation that the defendant had an obligation to work with her or had discouraged others from doing so, and defendant's choice concerning research projects was protected under the First Amendment. Also, the requirement that the plaintiff submit to physical examination every six months in order to obtain prescription refills was reasonable. Illinois just passed the Child Bereavement Leave Act, 820 ILCS 154 et seq.
Under the law, Illinois employers with at least 50 employees must provide employees who suffered the loss of a child with up to two weeks (10 work days) of unpaid leave. The law also provides for a cause of action against employers (as defined by the FMLA) who retaliate against employees who (1) need time off work due to the death of a child, (2) oppose practices that they believe violate the Act, or (3) supports the exercise of rights of another under this Act. Some caveats include:
Employee sued her former employer for allegedly firing her from her job as driver's license tester because of her anxiety disability, in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq. Felix v. Wisc. Dept. of Transportation, No. 15-2047 (7th Cir. July 6, 2016). The employer moved for summary judgement. The District Court granted the motion, as the undisputed facts demonstrated that she was discharged not solely because of her disabilities but rather based on workplace behavior that indicated to her employer that she posed a safety risk to herself and others. The Seventh Circuit affirmed. The Seventh Circuit held that the record showed that: (1) the plaintiff experienced severe anxiety attack at workplace, during which she shouted at her co-workers and threatened to harm herself, which required the defendant to call ambulance; and (2) a physician report after the attack indicated that the plaintiff remained at risk for potentially violent behavior towards herself and others. The plaintiff argued that the employer was making a "direct threat" defense, which it had not plead and which imposed the burden on the defendant to show a likelihood that the plaintiff would harm herself or others. However, the Seventh Circuit found that "direct threat" defense did not apply as the employee's behavior demonstrated that she was not qualified to perform her job. The fact that plaintiff's physician submitted a note indicating that the plaintiff could return to work at future date did not require different result. Plaintiff Mendez the Town of Cicero, alleging that it retaliated against her for reporting sexual harassment by a deputy police superintendent toward a subordinate when it transferred her from executive administrative assistant to the superintendent to a clerk in building department. Mendez v. The Town of Cicero, 2016 Ill. App. (1st) 150791 (June 29, 2016). At trial, a jury found that transfer was retaliatory, but did not award her damages for emotional distress and lost future earnings. The Circuit Court separately ruled that Mendez was entitled to reinstatement and awarded her $330,412 in attorney fees. The Appellate Court affirmed the award of attorney fees as reasonable. It held that attorney fees are not required to be proportional to amount of Plaintiff's own award.The Court further noted that the Plaintiff's refusal to accept Town's unilateral decision to transfer her was not a pretext to inflate attorney fees and costs. Finally, the Appellate Court further held that reinstatement vindicated Plaintiff's right under the Illinois Human Rights Act (IHRA) to be free from retaliation for reporting sexual harassment. Employee Simpson sued her employer, alleging that it fired her from her nursing position because of her race and age in violation of Title VII and the Age Discrimination in Employment Act (ADEA). Simpson v. Franciscan Alliance, Inc., No. 15-2679 (7th Cir. June 28, 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 Simpson had received four reprimands about her job performance relating to complaints the employer had received from patients and other medical personnel. Simpson failed to present competent evidence that a co-worker with a comparable disciplinary history received more favorable treatment. The fact that Simpson and a co-worker testified that they had personal knowledge that other nurses had received patient complaints and were still employed did not require different result since neither Simpson nor the co-worker supplied foundation in their affidavit as to basis of knowledge regarding the disciplinary history of other co-workers. Moreover, the patient complaints cited by Simpson and the co-worker were too few in number to provide fair comparison with Simpson's disciplinary history. |
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