Wednesday, August 24, 2016

7th Circuit Allows Ethnicity Discrimination Case to Move Forward, Addresses "Indirect" vs "Direct" Methods of Proof in Employment Law Cases

In a very important case out of the Court of Appeals for the 7th Circuit, the Court reversed and remanded an ethnic discrimination case filed under 42 U.S.C. §1981 and accompanying Illinois state law, and also took time and effort to address the "direct" and "indirect" methods of proofs courts often use in employment discrimination cases.

In granting summary judgment in favor of the employer, the 7th Circuit noted that the lower district court assigned admissions of culpability and smoking-gun evidence to the "direct" method (the judge found no such evidence in the case) and assigned suspicious circumstances that might allow an inference of discrimination to the "indirect" method.  The Court noted that the lower court, "did not try to aggregate the possibilities to find an overall likelihood of discrimination."  The 7th Circuit also noted that the district court treated each method as "having its own elements and rules, even though we have held that they are just means to consider whether one fact (here, ethnicity) caused another (here, discharge) and therefore are not 'elements' of any claim."  Instead of pursuing a unified inquiry, the district court elaborated by saying the plaintiff could prevail only by coming up with "evidence that creates a 'convincing mosaic of discrimination'".  The district court concluded that the plaintiff failed to present a "convincing mosaic" under the direct method because the racial slurs did not have anything to do with the plaintiff's discharge and that there wasn't enough of a "mosaic" under the indirect method because, by removing his name from the records and changing the rates, he fell short of the employer's expectations.

In rejecting the district court's approach, the 7th Circuit noted that looking for a "convincing mosaic" detracted attention from the sole question that matters:  Whether a reasonable juror could conclude that the plaintiff would have kept his job if he had a different ethnicity, and everything else had remained the same. "Convincing mosaic" was designed as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence and, instead, be used to take evidence as a pattern it reveals, and not as a test.  The 7th Circuit then stated that, from now on, any decision of a district court that treats this phrase as a legal requirement in an employment discrimination case is subject to summary reversal, so that the district court can evaluate the evidence under the correct standard.  That legal standard is simply 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.  Evidence 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.

With this standard of proof clarified, the Court then held that the combination of racial slurs the Plaintiff was subjected to, combined with the fact he was terminated for a practice(s) held acceptable as testified to by other brokers, a reasonable juror could infer that the Plaintiff's supervisors didn't much like Hispanics, and tried to pin heavy losses on the plaintiff to force him to resign.

The case is Ortiz v. Werner Enterprises, Inc., No.15-2574 (7th Cir.  8/19/ 2016) and is definitely a case any lawyer practicing employment law in the 7th Circuit should keep handy.

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