By Dawn Reddy Solowey

Seyfarth Synopsis: Anti-Muslim rhetoric dominates many media headlines.  A May 9, 2017 decision by the U.S. Court of Appeals for the Second Circuit highlights the risks to an employer when anti-Muslim rhetoric enters the workplace.

The Facts

In Ahmed v. Astoria Bank et al., the Second Circuit considered a claim brought by a plaintiff employee who had been terminated from her employment at Astoria Bank, at the end of her probationary period, for tardiness and carelessness in checking important documents.  The employee’s claims included that she had been subjected to a hostile work environment because she is Egyptian and Muslim.

The History

The District Court had granted summary judgment to the employer. As to the hostile-environment claim, the Court had reasoned that the alleged stray comments did not rise to the required “severe and pervasive” level.  The employee appealed only the ruling on the hostile environment claim.

The Second Circuit’s Holding

The Second Circuit reversed, holding that a reasonable jury could find that the employee was subject to severe and pervasive discriminatory harassment. The Court relied principally on the employee’s evidence that the supervisor “constantly” told her to remove her hijab head-covering, which he referred to as a “rag”; demeaned her race, ethnicity and religion “on several occasions”; and made a comment during her September 11, 2013 interview that she and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.”

Considering this evidence, together with allegations such as that another manager used hand gestures and spoke slowly to the plaintiff in everyday conversation as if to suggest she did not know English, the Second Circuit held that a jury could conclude that the plaintiff was subject to a “steady barrage of opprobrious” racial and anti-Muslim comments.

On that basis, while acknowledging the evidence was “on the knife’s edge” between summary judgment and trial, the Court reversed the District Court’s grant of summary judgment and remanded for a jury trial.

The Broader Context

Concerns about anti-Muslim sentiment affecting the workplace are hardly new. We’ve blogged before about the EEOC’s 2016 Questions and Answers for employers concerning workers who are, or are perceived to be, Muslim or Middle Eastern.

In that publication, issued in the wake of the Paris and San Bernandino attacks, the EEOC posited that, “Reactions in the workplace to world events demand increased efforts by employers to prevent discrimination.” Since then, the need has arguably only increased.

So What Can Employers Do?

Employers can take preventative steps to mitigate the risks.

  • The current climate is an opportunity for employers to take a fresh look at anti-discrimination and harassment policies, complaint mechanisms, and accommodation practices, to ensure compliance with federal, state and local laws.
  • Effective training not only helps prevent litigation, but can assist a defense. All employees should be trained that harassment and discrimination – including comments such as those alleged in the Ahmed case – will not be tolerated.  Training that is specific and interactive is most effective.
  • Companies should further train managers on nondiscriminatory hiring practices, and how to manage employee complaints.
  • Managers should also be aware of the need to consider accommodations for certain religious practices, such as the wearing of a hijab, and how to process such requests. Managers should be trained that an employee who receives a religious accommodation should never be subject to negative comments as a result.
  • When an employee complains of alleged discrimination or harassment, the employer should investigate promptly, and if a violation is found, take prompt remedial action.

 

By Paul Galligan and Samuel Sverdlov

Synopsis:  The Seventh Circuit affirmed a summary judgment decision in favor of the employer on the plaintiff’s race discrimination and civil conspiracy claims where the employer did not hire the plaintiff after the plaintiff tested positive for marijuana at orientation.

Last month, in Turner v. Hirschbach Motor Lines, the Seventh Circuit affirmed the district court’s granting of summary judgment in favor of Hirschbach Motor Lines (Hirschbach) on plaintiff, Robin Turner’s claims of race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and civil conspiracy under state law.

Background

Mr. Turner, an African American, was initially offered a job at Hirschbach as a commercial truck driver on the condition that he complete both the company orientation and a drug test. During orientation, Turner tested positive for marijuana.  Pursuant to Department of Transportation (DOT) regulations, Turner’s drug test was carried out at an independent medical facility, the urine sample was split into two, and the results of the first half of the sample were given to Turner through Hirschbach’s independent medical review officer.

Once Turner was given his results, Hirschbach’s safety officer explained to Turner that he had the right to request that the second half of his urine sample be tested at different laboratory. Turner told the safety officer that he wanted the second split test, but for disputed reasons, the second split test never happened.  Turner alleged at deposition that the safety officer cancelled the second split test.

Hirschbach ended up not hiring Turner. Pursuant to DOT regulations, Hirschbach reported Turner’s positive drug test “to an industry consortium from which future employers could, with Turner’s permission, seek his previous test results.” In turn, Turner filed race discrimination and conspiracy claims against Hirschbach.  Specifically, Turner alleged that: (1) Hirschbach did not hire him because of his race; (2) Hirschbach reported his drug tests to the industry consortium because of his race; and (3) Hirschbach conspired with the independent medical review officer to cancel the second split test.

Decision

Hirschbach moved for summary judgment on all of Turner’s claims. Turner argued that he could withstand Hirschbach’s summary judgment motion on a “cat’s paw theory.” Said otherwise, Turner argued that Hirschbach’s safety officer, who was not a decision-maker in Turner’s hiring, had racial animus towards Turner, which was a proximate cause of the decision to not hire Turner.  The district court was unpersuaded.  The court held that Turner did not put forth any evidence that: (1) the initial drug test was unreliable; (2) the second test would have been negative; or (3) the decision-maker based her decision on race rather than the positive drug test.  Further, the court held that reporting Turner’s negative drug test to the consortium was non-discriminatory because it was required by federal regulations.  Finally, the district court held that Turner’s conspiracy claim failed because there was no evidence on the record that Hirschbach and the independent medical review officer had an agreement to cancel the split test.

On appeal, Turner challenged the district court’s decision, and argued that he should have defeated summary judgment based on the simple assertion that the cancellation of the second split test violated DOT regulations. However, the Seventh Circuit held that Turner’s burden is greater than demonstrating a mere violation of a federal regulation.  Rather, given that the employer had put forth evidence that Hirschbach would not have hired someone who failed a drug test, Turner had “to support his cat’s paw theory with evidence casting doubt on the reliability of the initial drug test.”  Turner’s lack of evidence that the first test was a “false positive,” or that a second test would have come back negative, is fatal to Turner’s discrimination claim.  Regardless, the court held that Turner has not put forth evidence that Hirschbach actually violated any federal regulations.

Outlook

The Seventh Circuit’s decision in Hirschbach is a big win for employers, especially those employers who are subject to DOT or other onerous regulations.  Employers should rejoice in the Seventh Circuit’s willingness to hold Turner accountable for his burden of establishing a connection between the alleged racial animus and the adverse action.  However, employers should remain cautious and vigilant when taking adverse action against employees for hot-button issues such as failed drug tests.  Although the employer prevailed in Hirschbach, the court reminded employers that employees could prevail on a race discrimination claims where there is evidence of similarly situated employees of other races being treated differently.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment or Workplace Policies and Handbooks Teams.

By Steve Shardonofsky and Brian A. Wadsworth

Texas Law Legal System ConceptSeyfarth Synopsis:  In a decision that is sure to increase the costs and complexity of litigation, the Texas Supreme Court recently held that a former employee’s common law assault claim was not preempted by the state’s anti-discrimination statute. The Court reasoned that if the gravamen of an employee’s claim is that the employer committed assault through a “vice principal”–as opposed to sexual harassment–the employee may pursue the common law claim directly and would not be preempted.

Recently, in B.C. v. Steak N Shake Operations, Inc., the Texas Supreme Court held that an employee could sue her employer for assault where the gravamen of the claim was sexual assault by the employer’s “vice principal”, and not sexual harassment. In doing so, the Court narrowed its previous holding in Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) that common law torts predicated on the same or similar facts as a sexual harassment claim are preempted by the Texas Commission on Human Rights Act (“TCHRA”).

In a somewhat bizarre twist of logic, the decision suggests that employees subject to a single, severe instance sexual assault by a “vice principal” may bring a common law claim against the employer; but employees subject to a pattern sexual harassment involving sexually suggestive comments and conduct (including less violent or offensive touching constituting assault) may only bring a claim under the TCHRA (subject to administrative exhaustion requirements and damages caps). Until the courts resolve this open question, employers will likely be forced to defend both types of claims at the same time, while also having to litigate factually-intensive questions regarding who qualifies as a “vice principal” under Texas law.

Plaintiff B.C. worked as a server in the Steak N Shake restaurant in Frisco, Texas. During a shift in October 2010, she claimed that her supervisor assaulted her in the bathroom, pushing her against the wall and sink, groping her, and exposing his genitals. She was able to escape the attack only after the supervisor lost his balance and fell to the ground. Steak N Shake conducted an internal investigation after B.C. reported the incident, but was unable to confirm B.C.’s story. Steak N Shake extended an unqualified offer to B.C. to return to work at any Steak N Shake location of her choosing. B.C. declined the offer and instead resigned. She later sued Steak N Shake for a variety of common law claims, including assault, on the basis that her supervisor was a “vice principal” and therefore Steak N Shake was directly liable for his tortious actions. Steak N Shake moved for summary judgment arguing, in part, that the TCHRA preempted B.C.’s common law claims. The trial court granted summary judgment without explanation and B.C. appealed. The Dallas Court of Appeals, relying on Waffle House decision, affirmed the trial court’s ruling on the grounds that the TCHRA preempted B.C.’s assault claim.

In reversing, the Texas Supreme Court distinguished the facts in Waffle House, noting that the plaintiff in that case (Williams) had asserted a common-law negligent retention and supervision claim based on the employer’s alleged failure to prevent a pattern of sexual harassment by co-workers over six months that included inappropriate comments, suggestive winks, and arguably sexual assault (the employee allegedly held the plaintiff’s arms with his body pressed against hers and rubbed against the plaintiff’s breasts with his arms). Because sexual harassment under the TCHRA based on co-workers harassment is predicated on the employer’s alleged negligence and because it was the employer’s continued negligent supervisor and retention of the harasser that constituted the factual basis of Williams’ claims, the Texas Supreme Court held in Waffle House that the gravamen of the Williams’ complaint was a TCHRA-covered claim and not the negligence claims.

The Court then distinguished its holding in Waffle House from the claim raised by B.C. First, the factual basis for Williams’ common law claim in Waffle House was Waffle House’s continued supervision and retention of the harasser. B.C., on the other hand, only alleged a single instance of violent assault. Second, the Court reasoned that Williams improperly repackaged the assault portions of her sexual harassment claim in terms of negligence. Yet the gravamen of her complaint was sexual harassment by co-workers. Conversely, unlike Williams, B.C. did not allege a pattern or practice of sexual harassment by co-workers. Instead, she alleged that on a single occasion, Steak N Shake, acting through her supervisor, sexually assaulted her. Third, Williams alleged that a co-worker physically harassed her, whereas B.C. alleged that her employer was directly responsible for the alleged assault of a “vice principal” (i.e., her supervisor). Therefore, the Court reasoned, the gravamen of B.C.’s complaint was assault, not sexual harassment under the TCHRA. The Court also noted that there is no indication that the Texas legislature intended for the TCHRA to preempt assault claims against individual assailants (whether a corporate entity or an individual).

The Court’s holding here is likely to cause confusion and lead to strange outcomes. With little guidance, courts will be forced to decide whether the gravamen of a complaint is assault or sexual harassment. Because the Court did not draw a bright line, employees subject to a pattern of non-physical harassment and only one incident of assault may be limited by the TCHRA, whereas employees subject only to sexual assault (but no ongoing harassment) may be free to assert common law claims. Regardless of the final outcome, in the short term employers will likely be forced to defend both claims at the same time, particularly in cases involving sexual harassment by supervisors, managers, or executives. Litigating assault claims and questions about who qualifies as a “vice principal” will also likely increase the costs of litigation in this context.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment or Workplace Policies and Handbooks Teams.

By Steve Shardonofsky and Tiffany T. Tran

iStock_000072969307_MediumSeyfarth Synopsis: In a somewhat rare interlocutory appeal, the Fifth Circuit reviewed and reaffirmed a 40-year old case holding that emotional distress and punitive damages are not available under the ADEA. This decision rejected the EEOC’s own interpretation and is welcomed news for employers doing business in the Fifth Circuit because damages under the ADEA will be limited to front and back pay. This victory may be short-lived, however, as we expect many plaintiffs will file claims under the corresponding state-law statutes, which typically do allow for the recovery of emotional distress and punitive damages. 

In Vaughn v. Anderson Regional Medical Center, Susan Vaughan, a nurse supervisor, alleged that her employer fired her in retaliation for raising age-discrimination complaints.  The district court dismissed Vaughan’s claims for pain and suffering and punitive damages under the Age Discrimination in Employment Act (ADEA) based on Fifth Circuit precedent, Dean v. Am. Sec. Ins. Co., 559. F.2d 1036 (5th Cir. 1977), barring such recoveries.  Noting that the EEOC and other circuits held divergent views on this issue, however, the district court certified the question for a rare interlocutory appeal, and the Fifth Circuit granted review.

The Fifth Circuit rejected Vaughan’s effort to distinguish Dean on the basis that the case involved age discrimination claims, as opposed to retaliation claims under the ADEA. According to the Court, Dean held “in unqualified terms” that the type of damages Vaughn sought are not recoverable “in private actions posited upon the ADEA.”  Because the ADEA contained a prohibition on retaliation since its inception, Dean was controlling unless some intervening change in law “undermine[d] its continued vitality.” The Fifth Circuit rejected Vaughn’s arguments on this issue as well.

Vaughn argued there was a change in law since Dean because of the 1977 amendments to the FLSA, which the Fifth Circuit has interpreted as providing remedies “consistent” with the ADEA. According to the Fifth Circuit, those amendments added language that was identical to the provision in the ADEA allowing for “such legal or equitable relief as may be appropriate,” which Dean had already interpreted as precluding emotional distress and punitive damages. These changes, the Court explained, “brought the FLSA’s remedies for employer retaliation into line with the ADEA’s remedies for similar conduct.”  Notably, however, this explanation seems to conflict with another decision (Pineda v. JTCH Apartments, LLC) issued by a different panel of the Fifth Circuit just a few days later, which held that plaintiffs may recover emotional distress damages in FLSA retaliation claims.

The Fifth Circuit also declined to give deference to the EEOC’s interpretation on this issue, finding that the agency’s reliance on a Seventh Circuit decision was unpersuasive because it mistakenly relied on the 1977 amendments to the FLSA, which the Court had already rejected. Even if  the Fifth Circuit had found the EEOC’s view persuasive, it would not be sufficient to displace Dean because it is not binding precedent. The transfer of ADEA administrative/investigative functions from the Secretary of Labor to the EEOC also did not constitute an “intervening change” in law to override precedent.

Given the apparent conflict between this case and the recent Pineda decision, we may see these issues reviewed by the full panel of the Fifth Circuit.  Because the case also creates a split among the circuits courts, we may also see intervention by the Supreme Court in the future.  Until the full panel or the Supreme Court rules on this issue, claims for emotional distress and punitive damages under the ADEA will be subject to dismissal, at least in the Fifth Circuit.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment or Workplace Policies and Handbooks Team.

By Sam Schwartz-Fenwick and Lucas Deloach

Seyfarth Synopsis: Increasingly, courts have held that discrimination on the basis of sexual orientation and gender identity violates Title VII. Federal district courts in Nevada and Pennsylvania have recently joined their ranks.  Nonetheless, the issue remains unsettled.

In the previous two months, federal courts in Nevada and Pennsylvania held that Title VII’s prohibition on sex discrimination includes discrimination based on gender identity and sexual orientation, respectively. These rulings accompany the Seventh Circuit’s recent decision to vacate its panel ruling that Title VII did not extend to claims of sexual orientation discrimination and to re-hear the case en banc.

In Roberts v. Clark County School District, a transgender police officer brought suit in the District of Nevada after the Clark County School District prohibited him from using either the men’s or women’s restrooms.  The school district argued in its motion for partial summary judgment that Title VII only prohibits discrimination based on “biological sex.”  In an October 4, 2016 ruling, the court disagreed and “join[ed] the weight of the authority” concluding that discrimination based upon an individual’s transgender status violated Title VII.  It further concluded that the plaintiff was entitled to summary judgment on his discrimination claim, as he was “clearly treated differently than persons of both his biological sex and the gender he identifies as ­­- in sum, because of his transgender status.”

In EEOC v. Scott Medical Health Center, P.C., the Equal Employment Opportunity Commission (EEOC) sued a pain management and weight loss clinic and alleged that a gay male employee was constructively discharged after a manager created a sexually hostile work environment.  The complaint recited a number of the manager’s alleged homophobic slurs and statements. The defendant moved to dismiss the complaint on the grounds that Title VII does not protect discrimination on the basis of sexual orientation.  The court denied the defendant’s motion exactly one month after the Roberts decision.  The court remarked that “the singular question” is “whether, but for [the employee’s] sex, would he have been subjected to this discrimination or harassment.”  The court thought not and held that Title VII’s “because of sex” provision prohibits discrimination on the basis of sexual orientation.

Of course, these decisions are not the final word. As President-elect Trump assembles his administration, it is not yet clear whether the executive branch and its agencies will depart from the position that the protections of Title VII extend to LGBT statuses.  Additionally, the U.S. Supreme Court has agreed to hear an appeal which asks the Court to weigh in on the issue of restroom access for transgender students.  While the appeal directly implicates Title IX, the ruling could also impact courts’ interpretations of prohibitions on sex discrimination under Title VII.

Given this uncertainty and the patchwork of court decisions across the country, employers should consult with counsel to review their policies, practices, and procedures as they relate to sexual orientation and gender identity claims.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment or Workplace Policies and Handbooks Team.

 

 

 

By Johanna T. Wise and Arielle Eisenberg

Seyfarth Synopsis: On November 18, 2016, the EEOC issued new guidance on its enforcement of anti-discrimination laws related to national origin. The guidance provides clarification on the scope of national origin under Title VII and supersedes the 2002 update to the EEOC Compliance Manual, Volume II, Section 13.

Immigration, and thus the number of employed immigrants, has been steadily rising. In the wake of this increase in national origin diversity within the workplace, the EEOC issued an updated guidance to inform both employers and employees how it interprets, approves, and/or disapproves of court interpretation of national origin discrimination cases.  Tellingly, this is the EEOC’s first update to its national origin guidance since 2002, which reflects the EEOC’s current focus on national origin discrimination, harassment, and retaliation.

The guidance clarifies the definition of “national origin,” and what constitutes discrimination based on “place of origin” and “ethnicity” under Title VII of the Civil Rights Act of 1964:

  • National Origin: “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”
  • Employment Discrimination Based on Place of Origin: “discrimination ‘because of an individual’s, or his or her ancestor’s, place of origin.’ The place of origin may be a country . . . may be the United States . . . may be a geographic region, including a region that was never a country but nevertheless is closely associated with a particular national origin group.”
  • National Origin Group/Ethnic Group: “a group of people sharing a common language, culture ancestry, race, and/or other social characteristics.” This includes discrimination based on ethnicity and physical, linguistic or cultural traits.

The EEOC has also added Native American, or tribe members, to the definition of national origin. The guidance then provides an analysis of the intersection of national origin discrimination and other protections under Title VII such as race, color and religion.

The guidance further includes a non-inclusive list of all aspects of employment to which Title VII applies, as well as a list of “promising practices” or employment practices which “may help reduce the risk of violations.” Some highlights include:

  • Recruitment: “use a variety of recruitment methods to attract as diverse a pool of job seekers as possible.”
  • Hiring, Promotion and Assignment: establish “written objective criteria for evaluation candidates; communicating the criteria to prospective candidates; and applying those criteria consistently to all candidates.”
  • Discipline, Demotion, and Discharge: develop “objective, job-related criteria for identifying the unsatisfactory performance or conduct that can result in discipline, demotion, or discharge.”
  • Harassment: communicate clearly “to employees through policies and actions that harassment will not be tolerated and that employees who violate the prohibition against harassment will be disciplined.”

Other areas the new guidance covers are national origin as it relates to human trafficking, harassment, language barriers, citizenship, retaliation and foreign employers in the United States.

Lastly, the EEOC has also published a FAQ to be used in conjunction with the guidance and a small business fact sheet.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

By Mary Kay Klimesh, Sam Schwartz-Fenwick, and Abigail Cahak

Seyfarth Synopsis: The Supreme Court is poised to hear and rule on the Obama Administration’s position regarding coverage of gender identity within Title IX’s prohibition on sex discrimination. However, the status of the case is uncertain in light of who the incoming Trump Administration will appoint to the currently vacant ninth seat vacancy on the Court.

On October 28, 2016, the U.S. Supreme Court agreed to hear an appeal in the matter of Gloucester County School Board v. G.G., which asks the Court to weigh in on the issue of restroom access for transgender students.  The Supreme Court’s ruling is anticipated to address whether the U.S. Department of Education (“DOE”) may interpret a federal law prohibiting sex discrimination to cover claims based on gender identity.

The case appeals the decision of the U.S. Court of Appeals for the Fourth Circuit, which concluded that a Virginia school board violated Title IX when it decided not to allow a transgender male student to use the boys’ restroom.

The District Court Dismisses the Case

The U.S. District Court for the Eastern District of Virginia initially dismissed the plaintiff’s case, reasoning that, although Title IX prohibits discrimination on the basis of sex, it does not include concepts such as gender, gender identity, or sexual orientation in that prohibition. The District Court concluded that Title IX’s regulations allow schools to provide separate restrooms on the basis of sex, that the plaintiff’s biological sex is female, and that requiring him to use the girls’ restroom did not constitute sex discrimination.

The Fourth Circuit Reverses Due to Deference to the DOE’s Interpretation

The Fourth Circuit reversed based on deference to the DOE’s position that the term “sex” as used in Title IX incorporates gender identity.

Since 2014, the DOE and other federal agencies, including the U.S. Department of Housing and Urban Development, Occupational Safety and Health Administration, U.S. Office of Personnel Management, and Equal Employment Opportunity Commission, have interpreted and enforced their respective statues and regulations prohibiting sex discrimination to include a ban on gender identity discrimination.

In a January 7, 2015 opinion letter, the DOE stated that “[w]hen a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity” and cited its prior statements in a December 2014 policy document to similar effect.  More recently, in May 2016, the DOE issued a Dear Colleague letter reiterating its position that, when a school is notified by a parent or guardian that their child will assert a gender identity different from previous representations or records, the school must begin treating the student consistent with that gender identity and that Title IX imposes no medical diagnosis or treatment requirement as a prerequisite.

The Fourth Circuit concluded that the DOE’s interpretation of its own Title IX regulations was entitled to Auer deference, which requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent.  The court found the DOE’s interpretation permissible because “[a]lthough the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female.”  Further, “[t]he regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects.”  And although the DOE’s interpretation was “novel,” this alone “does not render the current interpretation inconsistent with prior agency practice,” particularly where the DOE and other federal agencies have consistently enforced the position since 2014.

An Uncertain Future

The school board petitioned the Supreme Court to hear the case arguing that the Fourth Circuit erred because the DOE’s interpretation actually alters the meaning of Title IX.  The Supreme Court agreed to hear the case and has granted certiorari on two questions: first, whether Auer deference should extend to an unpublished agency letter and, second, whether, regardless of deference, the DOE’s interpretation of Title IX and its regulations should be given effect.

It is unclear how President-elect Trump will handle the pending case once in control of the DOE and he has not clearly indicated his intentions on the matter.  However, Vice President-elect Pence has stated his position that the issue should be resolved at the local level.  As a practical matter, the new Administration could withdraw the DOE’s policy statements which could render the case-or-controversy requirement moot or which could otherwise prompt the Supreme Court to remand the decision to the lower courts for reconsideration.

Assuming the case proceeds forward, it will be heard during the Supreme Court’s October 2016 Term, which runs through June 2017.  The Supreme Court’s ruling will likely have a broader impact beyond education and could also have application to cases interpreting prohibitions on sex discrimination contained in other federal statutes, including Title VII of the Civil Rights Act of 1964.  The decision is expected to be sharply divided amongst the justices and, with Justice Scalia’s seat still sitting vacant, it is unknown how the lack of a ninth justice or the appointment of that position may impact the ruling.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

By Sam Schwartz-Fenwick and Kylie Byron

Seyfarth Synopsis: A Seventh Circuit panel’s ruling that Title VII does not cover claims of sexual orientation discrimination will be heard en banc by the Circuit.  Whether an en banc ruling affirms or reverses the panel’s decision, it is likely that this issue will only be resolved with certainty by the Supreme Court.

On October 11, 2016, in response to a petition for rehearing filed by the Appellant, and as we predicted in our blog, the Seventh Circuit vacated its panel ruling that Title VII did not extend to claims of sexual orientation discrimination, and decided to hear the case before the entire Seventh Circuit en banc.

The panel decision, issued in August 2016, was controversial and for many inconclusive.  The Court was friendly to the reasoning of the EEOC, which has been arguing that sexual orientation discrimination is per se sex discrimination covered by extant law.  Despite negating the rationale for not covering sexual orientation discrimination, the panel held fast to stare decisis and upheld the district court’s decision that sexual orientation discrimination claims were not covered by Title VII.

Reading the tea leaves, many believe the Seventh Circuit may be poised to reverse the panel decision.  Judge Posner, most notably, has recently been outspoken in his opinions on LGBT issues.  He wrote a scathing dissent in a recent Seventh Circuit case, Fuller v. Lynch, No. 15-3487, lamenting an immigration judge’s denial of relief to an asylum seeker on, in Posner’s words, “a supposed lack of ‘proof’ of bisexuality.”  Posner also previously authored the opinion striking down Wisconsin’s ban on same-sex marriage in Wolf v. Walker, on the basis of equal protection.

Judge Posner is not, of course, the only Judge in play.  He is, however, singularly and vocally outspoken on the issue, acting as a correspondent on LGBT rights in the law in the media.  Between Judge Posner’s vocal position, the panel’s internally conflicted initial opinion, and the willingness of the Seventh Circuit to take the case up for rehearing, many see the case as a ripe opportunity for the Seventh Circuit to become the first Circuit Court of Appeals to endorse the EEOC’s outlook on Title VII’s protection on the basis of sexual orientation.

However the Circuit Court rules will hardly be the last word on this issue.  The rehearing may result in some stabilization of the law in the Circuit, but is unlikely to portend for consistent results nationwide.  A Circuit split is likely to emerge, a split that will only be resolved by legislative or Supreme Court action.

In this time of flux, employers should consult with counsel to evaluate their internal policies, practices and procedures with an eye towards sexual orientation claims.

If you have questions regarding this topic, please contact the authors or your Seyfarth attorney.

 

By Abigail Cahak

Background of a street light reflection on broken windowSeyfarth Synopsis:  In a recent decision, the Seventh Circuit clarifies that plaintiffs need not present a “convincing mosaic” of direct or indirect evidence of discrimination to withstand summary judgment.  Rather, the evidence considered as a whole must permit a reasonable factfinder to find that discrimination caused the adverse employment action.

On August 19, 2016, the U.S. Court of Appeals for the Seventh Circuit issued a decision in Ortiz v. Werner Enterprises, Case No. 15-2574, which clarifies the standard it applies to discrimination claims on a motion for summary judgment.

In the decision, Judge Easterbrook takes aim at a line of case law which required a plaintiff to present a “convincing mosaic” of either direct or indirect evidence of discrimination in order to withstand summary judgment. Under this standard, district courts had previously separated the two “types” of evidence, assigning “[a]dmissions of culpability and smoking-gun evidence” to the “direct” category, while assigning “suspicious circumstances that might allow an inference of discrimination” to the “indirect” category, before determining that the plaintiff was unable to present a “convincing mosaic of discrimination” with respect to each category and without consideration of the evidence as a whole.

Judge Easterbrook concluded that the district courts’ concern with categorizing evidence distracted courts from the key issue: “whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Instead, Judge Easterbrook emphasized that “[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself—or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.”

The opinion blames district courts for seizing on dicta [non-precedential statements by the Court] contained in the Seventh Circuit’s 1994 decision in Troupe v. May Department Stores, Inc., 20 F.3d 734 (7th Cir. 1994) to create the “convincing mosaic” analysis that was never intended to be a “test,” but rather a helpful “mental picture.”  The decision notes that more recent Seventh Circuit decisions attempted to clean up the confusion while others contributed to it by treating “convincing mosaic” as a legal requirement.  As a bit of legal housekeeping, the opinion overrules a number of the Seventh Circuit’s prior decisions to the extent that they either applied “convincing mosaic” as a legal standard or separated evidence into “direct” and “indirect” categories.

However, despite using language that will likely confuse many summary judgment briefs in the future, the Seventh Circuit made clear that its “decision does not concern” “[t]he burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), [that] sometimes is referred to as an ‘indirect’ means of proving employment discrimination.”  And although the Seventh Circuit’s decision is intended to streamline the analysis, it remains to be seen whether it will, in fact, simplify summary judgment on discrimination claims, particularly where parties may attempt to rely on the still-valid holdings of its prior decisions, which performed the now defunct analysis.

If you have any questions regarding this article, please contact the author or your Seyfarth attorney.