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FEBRUARY 2016



Inside This Issue


1.    How Employers Can Lose an ADEA Claim

2.    Reverse Discrimination Suit Theory is Viable Cause of Action


3.    To Defeat an Unemployment Insurance Claim an Employer Must Show That it Has a Rule or Policy That Was Violated

4.    Illinois Supreme Court Rules That Subcontractors Are Not Covered by Valid Disclaimers of Implied Warranty of Habitability


​5.    ADA Causation Standard Remains an “Open Question” in the 7th Circuit


​6.    NLRB Decision Leads to Confusion About Workplace Recording



How Employers Can Lose an ADEA Claim


In Bordelon v. Bd. Of Education of the City of Chicago, the 7th Circuit Court of Appeals affirmed a plaintiff-employee claim for age discrimination under the Age Discrimination in Employment Act (“ADEA”).  The plaintiff-employee alleged that the defendant-employer influenced a decision maker to not renew plaintiff’s contract as principal of grade school on account of his age.  The decision maker based his decision to not renew plaintiff’s contract on low test scores of students and disciplinary problems.


The plaintiff-employee failed to demonstrate that defendant’s reasons for non-renewal were "not worthy of belief.”  The Appellate Court did not sustain plaintiff’s claim even though the plaintiff’s supervisor said to “give it up.”  This alone was not evidence of age discrimination since the supervisor did not mention age.


Plaintiff’s witnesses’ general observations that the supervisor wanted someone younger and that the supervisor gave less support to other school principals did not give rise to intentional discrimination.



Reverse Discrimination Suit Theory is Viable Cause of Action


In Deets v. Massman Construction Co., the U.S. Dist. Ct. S.D. Illinois ruled in favor of defendant-employer and granted summary judgment for the employer.  The 7th Circuit Court of Appeals reversed the district court.  The plaintiff-employee brought a Title VII reverse discrimination case alleging that he was laid off from his construction job on account of his white race.  The project superintendent allegedly told plaintiff that reason for layoff was because “[m]y minority numbers aren’t right.”  Record showed that defendant hired minority worker to position plaintiff had previously held shortly after plaintiff’s layoff.   Although project superintendent denied making such statement, the factual conflict over what would be direct evidence of discrimination could not be resolved on summary judgment motion.


The Appellate Court also found existence of sufficient circumstantial evidence of race discrimination, where, in addition to alleged statement by project superintendent, the record suggested that project superintendent knew at time of plaintiff's layoff that defendant was out of compliance with its minority participation goals.



To Defeat an Unemployment Insurance Claim an Employer Must Show That it Has a Rule or Policy That Was Violated


In Petrovic v. The Department of Employment Security (February 4, 2016, Cook Co.), an employee worked as a tower planner at O’Hare, employed by airline for nearly 24 years when she was terminated.  Employer claimed misconduct because employee, upon request from a friend at another airline, arranged for upgrade of passenger from business class to first class and for a bottle of champagne to be delivered to that passenger.  IDES denied Plaintiff’s application for unemployment benefits on basis that she was discharged for misconduct.


This case does not involve illegal or intentionally tortious conduct.  The Appellate Court required evidence of a deliberate rule violation.  The employer failed to offer any evidence of a rule or policy prohibiting employee from the actions taken, and employee testified that special favors of this type had been done previously for customers.


The Illinois Supreme Court ruled the employer failed to meet its burden of proving that Plaintiff was discharged for misconduct under Section 602(A) of the Unemployment Insurance Act.



Illinois Supreme Court Rules That Subcontractors Are Not Covered by Valid Disclaimers of Implied Warranty of Habitability


In Board of Managers of Park Point at Wheeling Condominium Association v. Park Point at Wheeling, LLC, a Condo association filed suit against various parties involved in design, construction and sale of a condo complex completed in 2004.  All defendants were alleged to have breached the implied warranty of habitability by incorporating latent defects into units and common elements.  The disclaimer met the criteria of an effective disclaimer, in part, because it was brought to each buyer’s attention by being conspicuous in the parties’ contract.  The lower courts erred in dismissing counts as to subcontractors who do not come within the scope of the written warranty disclaimer.   The lower courts properly dismissed counts as to developer-seller, and as to architect.


The Illinois Supreme Court ruled that the disclaimer of implied warranty of habitability was valid as to the developer since the disclaimer was conspicuous in bold type and buyers’ initialing the clause was unnecessary.  The lower courts dismissed the general contractor and the subcontractors from the suit based upon the disclaimer.  The Illinois Supreme Court reversed and ruled that since the subcontractors were not specifically mentioned in the disclaimer, the subcontractors are not covered by the disclaimer and remain in the suit brought by the Condo Association.


This decision does not follow any logic.  How can the general contractor/developer be dismissed from the suit while the subcontractors remain liable for latent defects?  It would be prudent to include subcontractors and suppliers in the disclaimer of implied warranty of habitability.



ADA Causation Standard Remains an “Open Question” in the 7th Circuit


Since 2008, the 7th U.S. Circuit Court of Appeals has yet to answer whether mixed-motive discrimination claims can prevail under the Americans with Disabilities Act (ADA). For the second time last year, in Arroyo v. Volvo Group North America LLC, the Court signaled that they are willing to reconsider that question.

The case dealt with an army reservist who was terminated from Volvo. The employee had taken 900 days of military leave over 6 ½ years. After her second deployment, she was diagnosed with PTSD. Her supervisors granted her a number of workplace accommodations, including time off for therapy, a quiet place to meditate, and a mentor. Nonetheless, she was also late to work 11 times in the months leading up to her termination (usually less than 10 minutes late). Through a string of emails, her supervisors discussed the difficulties posed by her absences and accommodations.

The employee brought discrimination claims under both, the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the ADA. The district court granted summary judgment in favor of Volvo. On appeal, the Appellate Panel concluded that the supervisor’s emails could be interpreted by a reasonable jury to show that Volvo was at least partially motivated by anti-military animus towards the employee, and that a reasonable jury could link this animus to the termination. The Panel found that the employee had presented sufficient evidence to make a prima facie case for discrimination under the “motivating factor” test for a USERRA claim, and that Volvo had not met its burden to show that it would have fired the employee even in the absence of her military service.


Turning to the ADA claim, the Appellate Court highlighted the distinction of a “more exacting” but-for standard under the ADA, although it is an open question whether the but-for standard is still “good law” (although the Court avoided deciding the issue because the emails raised a question of fact under the stricter but-for standard). The Appellate Court stated “it is an open question whether the 2008 amendments to the ADA, which changed the operative causation language from ‘because of’ to ‘on the basis of,’ altered the substantive standard.” This is the third time that the 7th Circuit has signaled that it is willing to reconsider the substantive standard.



NLRB Decision Leads to Confusion About Workplace Recording


In a retreat from earlier rulings, the National Labor Relations Board (“Board”) recently struck down as illegal an employer’s policy that prohibited employees from recording co-workers on the job without management’s approval.


In Whole Foods Market, Inc., the supermarket chain defended two workplace policies that prohibited workplace recording. The rules prohibited recording conversations, phone calls, images, or meetings with any device, including mobile phones, digital cameras and tape recorders. The expressly stated purpose of the rules was to encourage open and honest communication and dialogue among employees.


The United Food and Commercial Workers Union, Local 919 and Workers Organizing Committee of Chicago filed Unfair Labor Practice charges against Whole Foods claiming the policies violated the NLRA. An Administrative Law Judge concluded that Whole Foods’ policy was lawful because recording workplace communications is not a protected right, and such a policy was within Whole Foods’ right to regulate its workplace. The Board disagreed and reversed.


The Board reasoned that employee recording or photographing is protected by the Act if the employees are acting for their “mutual aid and protection” and that Whole Foods’ policies could preclude employees from recording protected employee picketing, documenting unsafe working conditions, publicizing workplace discussions concerning wages, employment terms and conditions.


The dissent noted “I believe employees would reasonably read the rules to safeguard their right to engage in union-related and other protected conversations.” In prior cases the Board has barred unions and employers in collective bargaining from insisting that negotiations be recorded or transcribed verbatim by court reporters. The Board’s decision in Whole Foods seems to be at odds with the principle it bestowed in the collective bargaining context.


NOTE:  This decision does not address state laws that bar recordings without agreement of all parties.



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