Seventh Circuit Court of Appeals Speaks Out on Employment Issues
By Ruder Ware Alumni
May 3, 2017
Several recent decisions by the Seventh Circuit Court of Appeals have set the tone for court decisions in the employment law field. The Seventh Circuit Court of Appeals covers a number of states in the Midwest, including Wisconsin, so the rulings are important for Wisconsin employers up to a point.
The first decision involves sexual orientation. The Seventh Circuit Court of Appeals held, contrary to other Courts, that sexual orientation is protected under Title VII of the Civil Rights Act and thereby extends the right of an employee to bring suit for discrimination based upon sexual orientation. This decision sets the stage for a Supreme Court review of the entire question although it does not have a heavy impact on Wisconsin employers. Sexual orientation is a protected category under the Wisconsin Fair Employment Act so Wisconsin employees have a state law protection even if the federal law does not extend protections against such discrimination to employees. The decision will not make a big difference for Wisconsin employers other than opening the door to potential federal claims for discrimination based upon sexual orientation. There are certain circumstances where a federal claim could allow an employee to recover more monies from an employer if that type of discrimination is proven in federal court.
In another decision, the Seventh Circuit Court of Appeals held that a Wisconsin employer did not discriminate against an employee who was unable to perform the regular duties of her position. In its ruling, the Seventh Circuit found that the employee failed to prove a retaliation claim because she was unable to show her termination was based solely upon her having filed a discrimination complaint against the University of Wisconsin-Platteville. The Court concluded that the actions taken by the University were not “materially adverse” to the employee at a level to suggest they persuaded the employee to not engage in the protected activity of filing a discrimination complaint. The employee alleged that statements made by her supervisor showed a materially adverse activity by the employer, but the facts showed that the statements did not directly criticize the employee. The Court of Appeals also found that the employer had offered legitimate, non-discriminatory reasons for being critical of the employee and there was nothing to show that these reasons were a pretext for some type of retaliation.
These decisions show the “yin and yang” of court decisions today and offer little guidance to employers when addressing difficult issues in the workplace. It seems evident that employees will be afforded more protections under state and federal law to ensure they are not adversely affected based upon a discriminatory reason. It is also clear that employers have a right to address performance concerns of employees as long as there are legitimate, non-discriminatory reasons for the action being taken.
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