On July 20, 2021, the 7th Circuit affirmed an order of summary judgment in favor of an employer on ADEA and Title VII employment discrimination and retaliation claims, in which the plaintiff alleged that the employer failed to re-hire her for various positions in the Chicago Public School System because of her age and race, as well as in retaliation for her prior discrimination complaint. Chatman v. Board of Education of the City of Chicago, No. 20-2882 (7th Cir. July 20, 2021). She alleged violations of Title VII’s anti-discrimination and anti-retaliation provisions, as well as a violation of the anti-discrimination provisions of the Age Discrimination in Employment Act (“ADEA”). Title VII makes it unlawful for an employer to fail or refuse to hire any individual with respect to her compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
The ADEA makes it unlawful for an employer to fail or refuse hire any individual with respect to her compensation, terms, conditions, or privileges of employment, because of such individual’s age. For a Title VII or ADEA failure-to-hire claim, a plaintiff must establish that: (1) she was a member of a protected class; (2) she applied for and was qualified for the subject position; (3) she was rejected for the position; and (4) the employer hired someone outside of her protected class who was not better qualified than the plaintiff. If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. In a failure-to-hire case, one example of a legitimate, nondiscriminatory reason is that the individuals hired were better candidates than the plaintiff. If the defendant produces a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff to introduce evidence that the defendant’s proffered reason is pretext for discrimination. Pretext “means a lie, specifically a phony reason for some action.” Pretext also refers to an employer’s efforts to cover their tracks or hide the real reason for not hiring the applicant. However, “a showing of pretext is not enough; the plaintiff must also show that the explanations are a pretext for the prohibited animus.” In this case, the 7th Circuit concluded that the plaintiff’s Title VII and ADEA claims failed for lack of proof.
The plaintiff also brought a claim under Title VII’s anti-retaliation provision. To prevail on a Title VII retaliation claim in the failure-to-hire context, a plaintiff must produce evidence that: (1) she engaged in protected activity; (2) the defendant refused to hire her; and (3) there was a causal connection between her protected activity and the defendant’s refusal to hire her. The standard for causation in Title VII retaliation claims is “but-for” causation. The plaintiff must show that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” In this case, the 7th Circuit concluded that there was no evidence that the plaintiff’s protected activity was the but-for cause of her not being hired. There was no evidence of any retaliatory motivation. Moreover, another applicant, who engaged in no protected activity, was also not hired for the same position for the same reason. Therefore, the plaintiff could not establish that she would have been hired absent her protected activity. With respect to another position at issue, there was no evidence that the decision-makers had any knowledge of the plaintiff’s prior EEOC charge and, therefore, their hiring decisions could not be retaliatory.