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Discrimination Claims: Focus on What Really Matters, Not a “Rat’s Nest of Surplus Tests” Discrimination Claims: Focus on What Really Matters, Not a “Rat’s Nest of Surplus Tests”

Discrimination Claims: Focus on What Really Matters, Not a “Rat’s Nest of Surplus Tests”

In Ortiz v. Werner Enter., Inc., the Seventh Circuit of the United States Court of Appeals recently admonished both sides of the employment law bar as well as district court judges in Indiana, Illinois and Wisconsin for being too formulaic in their approach, presentation and analysis of discrimination cases – calling the same a “rat’s nest of surplus ‘tests’.” The Court said,
[S]top separating “direct” from “indirect” evidence because the “direct-and-indirect framework does nothing to simplify the analysis” and actually “complicates matters by forcing parties to consider the same evidence in multiple ways.”
The Court said: “Instead, all evidence belongs in a single pile and must be evaluated as a whole;” a “conclusion [that] is consistent with McDonnell Douglas and its successors.” The Ortiz case makes it clear that, after all is said and done, the ultimate question in any discrimination case “is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action,” and it makes little sense to ask “whether any particular piece of evidence proves the case by itself – or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.” Since the Ortiz decision, some district courts in the Seventh Circuit have stated that the “sole question” is whether a reasonable jury could conclude that discrimination occurred. Other district courts seem more reluctant to jettison the formulaic framework for discrimination case analysis as established in the U.S. Supreme Court’s 1973 McDonnell Douglas Corp. v. Green case. Truth be told, the Ortiz case does not jettison the McDonnell Douglas framework, because it cannot do so, but gets close to stating that the U.S. Supreme Court should abandon the same in favor of a simple “reasonable jury” analysis.
Now, I am sure that you are now wondering, so what? Or, as an employer, you may be asking yourself, why should I care? Well, you should care because attorneys, judges and employers in Indiana, Illinois and Wisconsin are now on notice of how to approach claims, complaints and lawsuits dealing with discrimination. Yes, I meant to include “employers” in the “folks” put on notice by the Ortiz decision. Employers are on notice as well because they too need to stop focusing on elements of claims, “mosaics of the evidence,” or even the McDonnell Douglas framework (although this cannot be completely abandoned until the U.S. Supreme Court does so) and turn their focus back to the big picture. The big picture is the consideration of evidence as a whole. The big picture is not looking at single pieces of evidence or even sorting evidence into piles for consideration when faced with a discrimination claim.
Don’t fall into the trap of pulling out your attorney’s last position statement or brief and check what elements the person needs to prove. Every lawyer and non-lawyer can take away from the Ortiz case that each situation needs to be viewed as a whole. Although the Seventh Circuit did not reverse the results of any prior decisions while announcing its refined analysis standard, the same does not mean that a more vigorous, dare I say generous, view of the evidence may be in the Seventh Circuit’s future. It is very difficult to say what a “reasonable jury” will do. In fact, what is a reasonable jury? Your guess is as good as mine. However, in the end, what matters is what the Court/judge thinks is a reasonable jury. Again, your guess is as good as mine. The key is to make sure that you look at the big picture and don’t narrow your focus to whether or not it fits into piles, elements, or other restricting analysis tools. The following are a few practical tips to assist you when faced with this new landscape of discrimination cases in the Seventh Circuit.
Practical Tips:

  • DON’T overlook the fact that a plaintiff must still sustain an adverse employment action, regardless of the test to be applied to the claim of discrimination. It is important to not get lost in the details. The Seventh Circuit has not changed what a plaintiff must prove – discrimination – rather, it has just changed how everyone should be looking at the discrimination question.
  • DON’T be afraid to do your analysis of whether discrimination occurred.
  • DON’T use old language when talking to an administrative agency or Court – e.g., do not refer to “mosaics of the evidence” or the sorting of evidence into “direct” or “indirect” evidence.
  • DO look at the nature of the adverse employment action decision – was it in any way connected to the statutorily protected characteristic? If so, understand that your decision may end up before a jury.
  • DO understand that the burden-shifting framework in McDonnell Douglas concerns methods of proof, not the proof needed for a plaintiff to prevail. The “reasonable jury” standard remains as the evidentiary standard needed to prove a discrimination case.
  • DO look at all of the facts together, without sorting them into piles.
  • DO challenge the decision maker(s) and their thought processes – a failure to do so may put your employer’s decision in front of a jury.
  • DO train your managers, supervisors, human resources personnel and all personnel that discrimination will not be tolerated.
  • DO understand that the “jury” is still out on whether the Ortiz decision will mean more jury trials in the Seventh Circuit. The Seventh Circuit Court of Appeals is still affirming district court decisions granting summary judgment at what appears to be a regular rate. In the words of an old Ice Miller tag line, “It’s a complex world. Be advised.”
Please contact Paul Sweeney at (317) 236-5894 or, or another member of Ice Miller LLP's Labor, Employment and Immigration Practice Group if you have any questions regarding this article. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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