Seventh Circuit Overrules Use of “Direct” and “Indirect” Tests for Analyzing Employment Discrimination Claims

Posted in Employment Law

The U.S. Court of Appeals for the Seventh Circuit has overruled circuit precedent requiring employees to prove bias cases through either a “direct” or an “indirect” method to establish a “convincing mosaic” of discrimination. Ortiz v. Werner Enterprises., Inc., No. 15-2574 (7th Cir., Aug. 19, 2016).  The Court held that the correct standard is whether evidence as a whole demonstrates that a protected characteristic caused an adverse employment action.

The Court’s ruling reversed summary judgment on behalf of the defendant shipping company who discharged the plaintiff, a freight broker who allegedly falsified records that supposedly resulted in revenue losses. Plaintiff subsequently filed ethnicity discrimination and harassment claims under the Illinois Human Rights Act.  The lower court held that the plaintiff failed to present a “convincing mosaic” under the direct method because his supervisors’ racial slurs did not have anything to do with his discharge, and he also failed the indirect test at the prima facie stage because he was not performing to the employer’s “reasonable expectations.”  In reversing the decision, the Seventh Circuit threw out the summary judgment analysis that has been used by the circuit courts since at least the 1990s, articulating that there is no separate test in Title XII and related cases, but only the ultimate question of whether a reasonable juror could conclude that the plaintiff would have kept his job if he had a different ethnicity, and everything else remained the same.

The decision did not change the burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny.  Rather, the Seventh Circuit has eliminated the concept that evidence is to be sorted into two different groups, labeled “direct” and “indirect”, with separate evaluations of each.  Instead, all of the evidence belongs together and is to be evaluated as a whole.


Scott Brown

Scott Brown