On June 8, 2018, the 7th Circuit affirmed an order of summary judgment on Title VII race discrimination claims, but reversed summary judgment as to hostile work environment race-based workplace harassment claims. Johnson, et al. v. Advocate Health and Hospitals Corp., No. 16-3848 (7th Cir. 6/8/2018). The plaintiffs claimed that they were treated unfairly based on their race. The district court granted the defendant’s motion for summary judgment, finding that the plaintiffs failed to offer evidence necessary to support their claims. The 7th Circuit agreed with the district court on all issues except the hostile work environment claims. Despite doing away with the separate direct and indirect evidence tests and convincing mosaics, the 7th Circuit still uses the traditional McDonnell Douglas burden-shifting evidentiary framework for evaluating employment discrimination claims. Under McDonnell Douglas, a court considers whether the plaintiffs: (1) are members of a protected class; (2) performed reasonably on the job in accordance with their employer’s legitimate expectations; (3) were subjected to adverse employment action despite their reasonable performance; and (4) similarly situated employees outside of the protected class were treated more favorably by the employer.
Plaintiffs claimed that they were paid less than white employees because of their race. However, to succeed on their pay disparity claims, the plaintiffs were required to produce evidence that similarly situated non-African-American employees were treated more favorably. Similarly situated means directly comparable in all material respects. The proposed comparator employee does not have to be identical in every conceivable way. The similarly-situated inquiry is flexible, common-sense, and factual. The question is whether there are enough common features between the employees to allow a meaningful comparison. Significant factors include whether the employees being compared: (1) were supervised by the same person; (2) were subject to the same standards; and (3) engaged in similar conduct or misconduct without differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them. The plaintiffs in this case failed to meet their burden to offer relevant evidence on these facts and therefore could not sustain their pay discrimination claims.
Plaintiff also alleged failure to promote claims. However, they failed to establish the requisite element that similarly situated non-African-American employees were treated more favorably by the employer in regard to promotions. The lack of a relevant comparator also doomed the plaintiffs’ disparate termination claims since once again, they failed to offer any admissible evidence that similarly situated white employees were treated more favorably. The plaintiffs’ claims that they were assigned more strenuous, less desirably tasks on account of their race also failed for the same reason.
However, the 7th Circuit reached a different result on the plaintiffs’ workplace harassment hostile work environment claims. To state a claim for discrimination based on a hostile work environment, the plaintiffs must establish that: (1) they were subject to unwelcome harassment; (2) the harassment was based on their race; (3) the harassment was so severe or pervasive as to alter the conditions of employment and create a hostile or abusive working environment; and (4) there is a basis for employer liability. The conduct alleged must be sufficiently severe or pervasive to alter the conditions of employment, which depends on the severity of the discriminatory conduct, its frequency, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance. The legal standard for sufficiently severe or pervasive so as to affect the terms and conditions of employment “…is a far cry from hellish.” The 7th Circuit found that the plaintiffs’ evidence of harassment–a whole litany of alleged racial slurs made directly to the plaintiffs and other employees at the workplace–was sufficient to create triable issues of material fact precluding summary judgment on the harassment claims. Thus, the 7th Circuit reversed the district court’s grant of summary judgment on the hostile work environment claims based on the racially derogatory language.