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