On October 19, 2016, the 7th Circuit reversed an order of summary judgment on Title VII and Illinois Human Rights Act (“IHRA”) retaliation claims in which the plaintiffs alleged that the defendant refused to hire them as emergency medical technicians because of their prior sexual harassment complaints against interrelated business entities. Volling, et al. v. Kurtz Paramedic Services, Inc., No. 15-3572 (7th Cir. 10/19/2016). Under federal and Illinois law, it is unlawful for an employer to retaliate against an employee or job applicant because he or she engaged in protected activity such as opposing sexual harassment or any other unlawful employment practice of any employer. Illinois courts apply the federal Title VII framework to IHRA claims. To prevail on a Title VII retaliation claim, a plaintiff must establish that: (1) he or she engaged in a statutorily protected activity; (2) a materially adverse employment action was taken against him or her by the employer; and (3) there is a causal connection between the two. In the failure to hire context, a plaintiff must show that: (1) he or she engaged in protected activity; (2) he or she applied and had the technical qualifications required for the job position; (3) he or she was not hired for the position; and (4) a similarly situated individual who did not engage in protected activity was hired for the position.
The issue in this case was whether the plaintiffs’ failure to apply for the positions is fatal to their retaliation claims. The 7th Circuit concluded that the plaintiffs adequately pled an adverse employment action despite not applying for the positions. The proof requirements for Title VII cases are flexible. The failure to apply for a position does not stand in the way of a failure to hire claim where there was a discriminatory absence of publication of the position. If an employer prevents members of a protected class from applying for a position through secrecy, the prospective employees suffer an adverse employment action despite not applying. In this case, the prospective employer allegedly informed only job candidates who had not engaged in protected activity of the open positions. The plaintiffs’ failure to apply resulted from the discriminatory practice of which they complained and, therefore, their failure to apply did not bar their retaliation claims. It was sufficient for the plaintiffs to plead that absent the retaliatory lack of notice, they would have sought the positions.