The U.S. Court of Appeals for the Seventh Circuit has a reputation for leaning pro-employer in work-related disputes. So the recent decision in Ortiz v. Werner Enterprises came as a bit of a surprise – and its effects could be far-reaching.
The case upends the standard that the circuit has followed the last 20 years for determining discrimination in the workplace. Prior to this case, the court had held an employee plaintiff could prove discrimination in just one of two ways:
- Direct. That means providing the court with some type of direct evidence of discrimination.
- Indirect. This is providing the court with circumstantial evidence of discrimination, such as a pattern of actions (or as it sometimes called, a “convincing mosaic”).
Each method requires a series of tests, and the Seventh Circuit noted frustration with the legal wrangling that had to be done just to properly navigate these tests. This “convincing mosaic” as a legal standard was so confusing, the court wrote, that justices vowed any ruling based on that phrase is going to be subject to summary reversal.
According to court records in the Ortiz employment racial discrimination lawsuit, plaintiff alleged he had been fired form his job as a freight broker, which he’d held for seven years, due to his Mexican ethnicity. The company denied this, saying he was terminated for falsifying business records.
Because plaintiff didn’t have any direct evidence that discrimination was the reason for his firing, he was left to craft a “convincing mosaic.” Among the evidence he presented:
- A number of ethnic slurs were used against him during the course of employment. These included phrases like, “beaner,” “taco eater” and “dumb Mexican.” Expletives were often sprinkled throughout these phrases, which he contends were used more frequently in the months leading up to his firing.
- He was given poor assignments by managers that used this language.
- He was penalized for actions that other employees engaged in regularly without consequence.
All this evidence was lumped into varying piles for assessment based on these varying discrimination tests. The trial court ultimately concluded plaintiff lacked evidence and granted summary judgment to defense. The Seventh Circuit reversed and remanded the case for trial. In its ruling, the court ruled that, “evidence is evidence.” Direct, indirect or “convincing mosaic” – it should all be evaluated together in a single, unified review. In rejecting any further use of the direct/ indirect methodology, the court held that the standard from now on will be: Whether the evidence permits a reasonable finder of fact to conclude a plaintiff’s ethnicity, race, sex, religion or other protected class status caused the firing or other negative employment action
So in other words, these racial discrimination lawsuits aren’t going to be weighed with compartmentalized, different standards. Instead, the courts need to be considering the evidence on the whole.
This is good news for workers in the Seventh Circuit because this indirect/ direct standard often resulted in employers being handed summary judgments early on when plaintiffs couldn’t fully meet one standard or the other. Now, we have a situation where evidence that before might not have been weighed by the court (i.e., comments that were not directly connected to the negative employment action) can now be considered, which is going to give workers a better shot.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Additional Resources:
Ortiz v. Werner Enterprises , Aug. 19, 2016, U.S. Court of Appeals for the Seventh Circuit
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Disability Discrimination Settlement $90K Against Wal-Mart, Aug. 23, 2016, Orange County Employment Lawyer Blog