22 August 2016
22 August 2016,
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The Seventh Circuit court of Appeals, which is one level below the United States Supreme Court and has jurisdiction over the states of Illinois, Wisconsin, and Indiana, finally eliminated the Direct/Indirect Dichotomy in employment discrimination cases — effectively bringing the analysis back in line with other civil matters and affirming that the same rules of evidence apply to all cases.

For decades the Seventh Circuit has instructed victims of employment discrimination to use one of two tests to avoid summary judgment before trial. The “direct” test required direct evidence of discrimination (such as an admission) or a “convincing mosaic” of circumstantial evidence supporting an inference of discrimination, and the “indirect” test was based upon the burden-shifting approach articulated by the Supreme Court in the McDonnell Douglas case.

Originally meant to streamline the analysis of employment discrimination cases, these tests instead gave employers a roadmap to defeat them and avoid trial by slicing and dicing seemingly straightforward claims.

In Ortiz v. Werner Enterprises, Inc., No. 15-2574 (7th Cir. Aug. 19, 2016), the plaintiff alleged that his employer terminated his employment for discriminatory reasons, and that that both bosses “subjected him to a barrage of ethnic slurs.” According to the record, Plaintiff alleged that his bosses “frequently used epithets such as ‘beaner,’ ‘taco eater,’ ‘f[**]king beaner,’ ‘taco,’ ‘bean eater,’ ‘dumb Mexican,’ ‘stupid Puerto Rican,’ ‘dumb Puerto Rican,’ ‘fucking Puerto Rican,’ ‘Puerto Rican,’ and ‘dumb Jew’ ….” This harassment “increased in frequency and intensity in the months leading up to his discharge” and the employee was able to show that the employer’s stated reason for his termination, low productivity, was untrue.

Any normal person (and by normal I mean not a lawyer or judge) would look at those facts and think, “yeah, it’s possible that this employee was fired because of his race or ethnicity.” But no, the district court judge determined that no reasonable juror could find discrimination under these facts and granted summary judgment in favor of the employer and dismissed the case. The judge held that “Ortiz had failed to present a ‘convincing mosaic’ under the direct method because [the boss’] racial slurs did not have anything to do with Ortiz’s discharge,” while he failed the indirect test at the prima facie stage because he was not performing to the employer’s “reasonable expectations,” despite the fact that he was able to show that the reasons for his termination were pretext.

The Seventh Circuit not only reversed the decision and sent the case back to the district court for trial, it scrapped the tests altogether: “The district court’s effort to shoehorn all evidence into two ‘methods,’ and its insistence that either method be implemented by looking for a ‘convincing mosaic,’ detracted attention from the sole question that matters: Whether a reasonable juror could conclude that Ortiz would have kept his job if he had a different ethnicity, and everything else had remained the same.” The panel then warned that it would summarily reverse any district court judge who referred to “convincing mosaic” as a test or requirement to be met in employment discrimination cases, and further held that “district courts must stop separating ‘direct’ from ‘indirect’ evidence and proceeding as if they were subject to different legal standards.”

It was always odd that the direct/indirect dichotomy, which seemed so important at the summary judgment stage, melted away at trial in favor of the pattern jury instructions. But now, the Seventh Circuit has made clear that those jury instructions are all that really matter, from an evidentiary standpoint. Hopefully, the district courts will take heed and treat employment discrimination cases the same as any other case at the summary judgment stage.

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