Search form

Seventh Circuit Holds No “Token” Exception in Title VII Discrimination Cases

By Nadine C. Abrahams and Jane M. McFetridge
  • August 25, 2011

Favorable treatment of one minority employee did not absolve or justify discriminatory treatment against other employees of the same race or national origin, the U.S. Court of Appeals for the Seventh Circuit, in Chicago, has held in Diaz v. Kraft Foods Global, Inc. No. 10-3073, 2011 U.S. App. LEXIS 16325 (7th Cir. Aug. 8, 2011).  The Court reversed summary judgment in favor of the employer and returned the case to the district court.  The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.

The Facts

Four former and one current employee of Kraft Foods Global, Inc. allegedly were subject to discriminatory treatment on the basis of their national origin, Hispanic, by one of their non-Hispanic supervisors, Peter Michalec.  The sanitation and janitorial plaintiff-employees at Kraft’s Tech Center in Glenview, Illinois, alleged, among other things, that Michalec would assign them the most undesirable tasks, such as scrubbing parking lots and cleaning sewers during the winter months, but did not require non-Hispanic employees to perform these duties.  They also alleged Michalec made anti-Hispanic comments and slurs.
Kraft had announced in 2008 that it was outsourcing many positions at the Tech Center, including the positions that the five plaintiffs held.  When the plaintiffs attempted to apply for other employment within Kraft, their efforts were thwarted, allegedly by Michalec, until three of the plaintiffs ultimately ran out of time to find employment within Kraft or the new organization to which their former positions had been outsourced.  For example, there was a sign-up sheet for one open position within Kraft, and two of the five plaintiffs signed up for consideration.  Later, an unknown person, whom the plaintiffs believed to be Michalec, crossed their names off of the sign-up sheet, and they were never considered for the position (which would have ultimately reported to Michalec).  Additionally, three of the plaintiffs applied for open sanitation positions within Kraft, which also would have reported to Michalec.  One of the plaintiffs was selected for one of the sanitation positions, but she was given the least desirable shift, the night shift.  Indeed, this plaintiff alleged that no woman had ever been selected to work the night shift in a sanitation position.  When she asked Michalec why she was assigned the night shift, he allegedly replied that he placed another new-hire into the day shift position because he was “white like me [Michalec],” and because “he had a family to take care of.”

The plaintiffs sued the company for discrimination in violation of Title VII of the Civil Rights Act.  The district court granted summary judgment to Kraft against four of the plaintiffs and ruled in favor of one plaintiff, who later settled out of court.

Ruling of Appeals Court

Three of the remaining plaintiffs challenged the district court’s grant of summary judgment to Kraft.  The district court found that some of Michalec’s actions could have suggested bias against Hispanics, but because one of Michalec’s workers, who was Hispanic, was not subject to the same treatment, the evidence, according to the court, did not support an inference of discrimination and Kraft was entitled to summary judgment.

The Seventh Circuit rejected this reasoning.   Following a Supreme Court analysis in Connecticut v. Teal, 451 U.S. 440 (1982), it held that “there is no token exception to anti-discrimination law.”  It explained, “Title VII would have little force if an employer could defeat a claim of discrimination by treating a single member of the protected class in accordance with the law.”  Moreover, “the principal focus of [Title VII] is the protection of the individual employee, rather than the protection of the minority group as a whole.”

The Court observed that the district court may have inverted the burden-shifting factor under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), by creating a sort of “similarly situated employee” analysis for the employer to use as a rebuttal to discrimination claims.  To avoid any confusion, the Court held, “One thing is clear under [the McDonnell Douglas] framework: the employer cannot satisfy its burden by identifying a person within the protected class who was not similarly discriminated against.”

Jackson Lewis attorneys are available to answer inquiries regarding this and other workplace developments.

©2011 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

See AllRelated Articles You May Like

October 5, 2017

Department of Justice Releases Memorandum Restricting Transgender Worker Protection under Title VII

October 5, 2017

On October 4, 2017, Attorney General Jeff Sessions reversed the Department of Justice’s position that gender identity is protected as part of Title VII of the Civil Rights Act’s prohibition against sex discrimination — taking a position that is contrary to current guidance from the Equal Employment Opportunity Commission. In a... Read More

October 4, 2017

Retail Industry Workplace Law Update – Fall 2017

October 4, 2017

Oregon Enacts Scheduling Legislation Oregon has become the first U.S. state to regulate employer scheduling practices in the retail, food service, and hospitality industries. Read full article… States Strengthen Protections for Pregnant Workers Employers should plan to comply with changes to Connecticut, Massachusetts, and... Read More

September 27, 2017

Supreme Court Preview: 2017-2018 Term

September 27, 2017

The U.S. Supreme Court will begin its 2017-2018 Term with no shortage of cases significant to employers and businesses. Cases to watch involve questions about employment arbitration agreements, Dodd-Frank Act’s protections of internal whistleblowers, and state laws barring discrimination against LGBTQ people. Arbitration Agreements... Read More

Related Practices