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Seventh Circuit Clarifies Employment Discrimination Legal Standard: Forget "Convincing Mosaic"; Evidence is Evidence
Practical Law Legal Update w-003-2035 (Approx. 6 pages)
Seventh Circuit Clarifies Employment Discrimination Legal Standard: Forget "Convincing Mosaic"; Evidence is Evidence
by Practical Law Labor & Employment
| Published on 25 Aug 2016 • USA (National/Federal) |
In Ortiz v. Werner Enterprises, the US Court of Appeals for the Seventh Circuit held that the proper standard for analyzing employment discrimination cases is whether the evidence as a whole permits a reasonable fact-finder to conclude that the plaintiff's protected status caused the adverse employment action. District courts must stop relying on the "convincing mosaic of discrimination" metaphor as a legal standard for analyzing these cases and separating direct and indirect evidence as if they are different legal standards.
On August 19, 2016, in Ortiz v. Werner Enterprises, Inc., the US Court of Appeals for the Seventh Circuit clarified that the proper standard for analyzing employment discrimination cases is whether the evidence as a whole permits a reasonable fact-finder to conclude that the plaintiff's protected status caused the adverse employment action. The Seventh Circuit chastised district courts for treating the "convincing mosaic" metaphor as a legal standard and for separating direct and indirect evidence into piles to be analyzed separately. The Seventh Circuit also reversed a string of its own decisions in which it misapplied these methods. ( (7th Cir. Aug. 19, 2016).)
Background
Henry Ortiz worked as a freight broker for Werner Enterprises, a shipping company that links customers with transportation carriers for their freight. He was terminated after an assistant manager booked six unprofitable freight loads in his name and Ortiz changed the records in the company's system to reflect that he had not booked the loads or to show different rates to which he thought the carriers had agreed. Ortiz filed a lawsuit under 42 U.S.C. § 1981 and the Illinois Human Rights Act (775 ILCS 5/1-101 to 775 ILCS 5/10-104), arguing that his employment was terminated because of his Mexican ethnicity and that his superiors regularly used racial slurs towards him. He also claimed that Werner subjected him to a hostile work environment in violation of state law.
The district court granted summary judgment to Werner, looking at the evidence through the direct and indirect methods, and treating each type of evidence as having its own elements and rules, without aggregating all the evidence to assess the overall likelihood of discrimination. Ortiz appealed to the Seventh Circuit.
Outcome
The Seventh Circuit reversed and remanded, holding that:
- The proper standard for analyzing employment discrimination cases is whether the evidence as a whole permits a reasonable fact-finder to conclude that a plaintiff's protected status caused the adverse employment action.
- A "convincing mosaic of discrimination" is not a legal test for analyzing whether discrimination occurred. District courts that rely on this metaphor as a legal standard will be subject to summary reversal so that the court can evaluate the evidence under the correct standard.
- Evidence is evidence and must be considered as a whole; district courts must stop separating direct and indirect evidence and proceeding as if they are different legal standards. Decisions issued using this framework will also be reversed.
The Seventh Circuit noted that:
- The phrase "convincing mosaic" originated in Troupe v. May Department Stores Co., where the Seventh Circuit tried to illustrate that courts should not differentiate between direct and indirect evidence (20 F.3d 734 (7th Cir. 1994)).
- District courts, including the one in Ortiz, misinterpreted the term "convincing mosaic" as a new test that must be satisfied.
- Over the years, the Seventh Circuit has:
- disapproved of the direct and indirect methods as well as the search for the convincing mosaic, noting that the mosaic was initially supposed to displace, not further complicate, the direct and indirect methods (see for example, Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900 (7th Cir. 2006); Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012); Good v. University of Chicago Medical Center, 673 F.3d 670, 680 (7th Cir. 2012)); and
- occasionally, itself, treated the "convincing mosaic" as a requirement (see for example, Hatcher v. Bd. of Trustees of S. Illinois Univ., (7th Cir. July 14, 2016); Chaib v. Indiana, 744 F.3d 974, 981 (7th Cir. 2014); Cloe v. Indianapolis, 712 F.3d 1171, 1180 (7th Cir. 2013)).
- The standard of analyzing evidence as a whole is consistent with the burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny.
The Seventh Circuit overruled two lines of precedent:
- Cases that relied on the "convincing mosaic" as a governing legal standard (Hatcher, (7th Cir. July 14, 2016); Chaib, 744 F.3d 974, 981 (7th Cir. 2014); Cloe, 712 F.3d 1171, 1180 (7th Cir. 2013); Smith v. Bray, 681 F.3d 888, 901 (7th Cir. 2012); Good, 673 F.3d at 674; Silverman v. Board of Education of Chicago, 637 F.3d 729, 734 (7th Cir. 2011); Phelan v. Cook County, 463 F.3d 773, 779 (7th Cir. 2006); Koszola v. Board of Education of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Rhodes v. Illinois Department of Transportation, 359 F.3d 498, 504 (7th Cir. 2004); Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003); Robin v. Espo Engineering Corp., 200 F.3d 1081, 1088–89 (7th Cir. 2000)).
- Cases that insisted on the direct and indirect evidentiary framework (Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir. 2014); Silverman, 637 F.3d 729; Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487 (7th Cir. 2007); Rhodes, 359 F.3d at 498; Haywood v. Lucent Technologies, Inc., 323 F.3d 524 (7th Cir. 2003); Oest v. Illinois Department of Corrections, 240 F.3d 605 (7th Cir. 2001); Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Cir. 2000); Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391 (7th Cir. 1997); Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988); La Montagne v. American Convenience Products, Inc., 750 F.2d 1405 (7th Cir. 1984)).
Practical Implications
In Ortiz, the Seventh Circuit overruled two lines of cases in a prominent circuit and clarified how employment discrimination cases should be analyzed going forward. Employers litigating in the Seventh Circuit should:
- Avoid describing evidence as "direct" or "indirect."
- Refrain from relying on the "convincing mosaic of discrimination" metaphor as a legal standard.
The Seventh Circuit's description of the legal standard in employment discrimination cases works with the McDonnell-Douglas burden-shifting framework. Employers litigating in other circuits should consider adopting the Seventh Circuit's approach and focus on its simple test of whether the evidence would permit a reasonable fact finder to conclude that a plaintiff's protected status caused the challenged employment action.