In the past decades, many legal restraints have been placed upon employers to discourage, even prevent, unlawful acts of discrimination against employees related to their membership in a number of discrete groups. Those groups include ones listed in this article’s title as well as other protected groups identified in various statutes, such as sexual identity, religious affiliation, and national origin. Due to the wide scope of protections seemingly offered to such populations, one might believe workplaces are safer now and more equitable than ever. Yet from the news and reports of statistics, and from headline grabbing, detailed coverage of horrific cases of discriminatory treatment by employers, as well as the numbers of complaints filed alleging such illegal treatment, we know that cannot be true. Such regular legal news catches our attention, as lawyers, as persons of various backgrounds and ethnicities, as women, as members of the LGBTQ community, as persons with disabilities or of advanced age, as students and teachers, and as members of the general public. We are affected on both professional and personal levels.

What Suffices to Prove Unequal Working Conditions?

One of the deliberate ways we might at least learn what is happening in certain workplaces, and whether anyone is listening to the victims and granting legitimacy to their claims, is by scouring through the records of the Illinois Human Rights Commission and the U.S. Department of Justice to review the postings of adjudications rendered in administrative proceedings for claims brought before them.¹ On these websites we will also find the legal underpinnings upon which the complainants’ claims are based and the hearing officers rely, in combination with the facts presented, for the rulings issued for either party.

Federal and state statutes and regulations prohibiting employment discrimination against persons in protected groups have long been in effect.² And particular attention should be paid to CM-613 which covers the “terms, conditions, and privileges of employment” that is the standard relied upon by employers and the judicial system when it becomes necessary to determine whether employees in protected groups are receiving fair and equal treatment in comparison, for example, to their white counterparts or their male counterparts. Also of import is the Equal Pay Act of 1963,³ which prohibits wage differentials between men and women (or other disparate groups) performing equal work in the same workplace. On the state level, we supposedly can rely upon the Illinois Human Rights Act.⁴ Such laws and regulations have become more widely familiar to the general populace, including of course employers, to whom the laws and regulations are directed, yet we know that race, gender, ethnicity, national origin, age, and sexual identity discrimination in the workplace continue, seemingly unabated.

Given this strong framework, what should we know about the outcomes of these cases and how they may and should influence future conduct, and provide guidance concerning what kinds of training employers/employees may still need? In one particular area—that being complaints of unequal or discriminatory working conditions—it appears that the bar is extremely high, as recent decisions have dismissed, as insufficient, claims that rely upon one or two incidents, or that balance discriminatory actions inflicted by employers or supervisors upon those they supervise against the benefits the employer may be granting to the complainant. These decisions find, seemingly, that it is “ok” to sexually harass or mistreat on the basis of race if that employee otherwise is doing well at the company. When such employee claims are dismissed as such, employers everywhere may get the message that some forms of discrimination or otherwise prohibited harassment are NOT illegal. They take from these decisions that they can ignore employee complaints and not worry about their responsibility to treat all employees equally. Employers may feel no need to refrain from adverse actions against such individuals and groups based upon their status in any of the protected groups, or any need to provide some form of “Know Your Rights” training for employees. In essence, employers may feel no need to assure, to the best of their abilities, that working conditions in their workplaces do not impose greater burdens upon one or more protected groups than upon others and/or that working conditions in their workplaces are in accordance with prevailing law.

One Incident Could/Should Be Enough

To give some substance to my generalities, let me introduce you to a recent memorandum opinion and order issued by a federal judge in the Northern District of Illinois in January 2021.⁵ In this opinion, the Court ruled on a four-count complaint brought by Taryn Fernandes, a former first-year medical student employed as a resident by Rosalind Franklin University. The underlying factual allegations involve a group of nurses and attending staff accessing Ms. Fernandes’ personal Gmail and Google Photos accounts, and then ‘sexting’ nude photos of Fernandes to a wide range of hospital employees, all without the knowledge or permission of Fernandes, but in a manner that gave the appearance that Fernandes herself had shared them with that staff. Reports to her supervisor regarding the incident were not appropriately and fully addressed. The defendant employer filed a motion to dismiss, seeking dismissal of two of the four counts pertaining to allegations of intentional infliction of emotional distress and sexual harassment. In its order, the court denied the defendant’s motion to dismiss Count 1 and granted dismissal of Count IV, which was unopposed.

What is encouraging in the order is that Judge Iain Johnston took care to note for Plaintiff Fernandes’ benefit those factors that she needed to specifically address in order to ultimately prove her claim of sexual harassment, and also to note that for now: “The Court sets aside what strikes it as a classic example of victim shaming.” Moreover, in response to certain arguments the defendant made in its motion to dismiss, the court states that sexual harassment, to be proven, need not be both ‘severe and pervasive’ and that one incident, depending upon its impact, can be sufficient to support such a claim, especially since, in this case, the unauthorized access into plaintiff’s personal accounts and the widespread distribution of the personal photos “in one evening’s fell swoop” can be enough due to its severity and/or its pervasiveness. In its analysis, the court also cited a case in which a federal appeals court asserted it was error for the district court to opine that sex-based harassment can never be actionable unless it is repeated. See Smith v. Shehan, 189 F.3d. 529, 533 (7th Cir. 1999). Nor is a claim defeated by the fact that the complainant was not present when the challenged act of sexual harassment occurred. What counts is what everyone saw and knew about the complainant as a direct result of the actions of the complainant’s co-workers.

Recent examples concerning incidents of sexual discrimination and harassment in the legal workplace have been shared and we also have a new model for sexual harassment training on this issue from the Illinois Human Rights Act (IHRA) as overseen by the Illinois Human Rights Commission (see www.illinois.gov/dhr/training and PA 101-0221 which includes the Workplace Transparency Act), that all employers in the legal profession must provide annually to their employees.⁶ Such training is intended to inform all employees in their respective law firms and other legal workplaces as to what kinds of behaviors, whether in words or actions, and from whom, constitute prohibited misconduct, what rights they have as employees to report such misconduct they have experienced or observed and to whom, and what protections are afforded to protect those who report misconduct from retaliation. Yet we do continue to learn more about how to face the issue and take steps to combat this illegal conduct from the case rulings, whether we agree or not with the courts’ interpretations of the evidence and the applicable law or the ultimate rulings presumably based upon that framework. And some of them do or continue to address the issue of “working conditions,” what type of conduct or behaviors belong in that category, what the degree of proof should be to conclude that sexual discrimination or harassment has occurred, and if certain actions should be taken against the offender, with recompense made to the plaintiff.

In the cases filed by employees asserting discrimination against their employers which are indeed grounded in claims of unequal working conditions, it appears such an allegation is difficult to prove for any plaintiff, perhaps because the statutory wording does not provide examples, although examples can be found on the sites of the IHRC and the DOJ. Yet no one could possibly offer a comprehensive listing of all the ways in which savvy or perhaps ignorant employers can find creative ways to treat members of a minority group differently based upon their race, gender, ethnicity, sexual identity, etc., or to articulate a rationale for doing so.

When Differential Race Discrimination Fails to Qualify

We see an example of such differential treatment related to working conditions in the case of Peterson v. Linear Controls Inc., No. 16-cv-00725, and a later ruling in 18-cv-1401 (W. D. La.). Here, the Plaintiff, David Peterson, sued his employer Linear Controls Inc. due to the differential treatment of a group of black crew members to which he, as an African American, was assigned, and a group of their Caucasian counterparts. Both of these groups were working on the same special project that required each of the separate crews to be in a different location, one outside in the blazing heat and one inside in an air-conditioned space. The white workers’ crew was stationed indoors while the black workers’ crew was stationed outside and not allowed to come indoors, even to get a glass of water or use the toilet. Reading this set of facts almost made me sick, as did learning what the court ruled on Peterson’s claims.

In this matter, the magistrate judge who heard the case ruled in favor of Linear Controls Inc. on the defendant employer’s motion for summary judgment, finding that Peterson failed to allege an adverse employment action, to adequately identify a similarly situated comparator, or get beyond circumstantial evidence to support his assertion of racial discrimination as required by the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,411 U.S. 792, 802 (1973). Plaintiff Peterson appealed this ruling to the U.S. Court of Appeals for the Fifth Circuit, which affirmed in full the lower court ruling. And last but not least, Peterson filed a petition for a writ of certiorari to the U.S. Supreme Court.⁷ It seemed an encouraging development when the Supreme Court asked the Department of Justice for input on the scope of Title VII, which might indicate the Justices, perhaps aware of divergent interpretations by many courts at different levels of review as to what qualifies as racial or sexual discrimination, may have decided it would be necessary to do a “deep dive” into the statutory framework to learn what forms of conduct, by whom, and how severe or intense or frequent it needs to be to constitute illegal harassment. Unfortunately, the Peterson case never made its way upstairs. Instead, the case record shows that Peterson withdrew his Petition for Supreme Court review. Popular speculation is that the employer, Linear Controls Inc., decided to settle with Peterson rather than face the very public view of the alleged discrimination in such a public domain as the highest Court in the land. Likely we will never know if such an outcome might have occurred, and doubtless the settlement included a confidentiality clause.

SO…do you think you have reached the end of this exceptionally long article? Absolutely NOT. I have another case to present to you which I hope you find as interesting as I did.

The High Bar for Proving Gender Discrimination in Sports

Most recently, we also learned through multiple news ‘flashes’ about the status of the court case brought by the U.S. Senior Women’s National Soccer Team (WNT) against the U.S. Soccer Federation (USSF) which claimed gender discrimination in the wages and the working conditions of the Team’s members in comparison to the wages and working conditions of the members of the Men’s National Soccer Team (MNT). Such disparities became public when several members of the Women’s Team filed a wage discrimination complaint with the federal Equal Employment Opportunity Commission in 2016. The filing stated that the gender imbalance was pervasive, including in the amounts of bonuses and appearance fees paid to the female soccer players compared to what the male players received, the kind of turf on which they had to play, the quality of travel conditions and hotel accommodations when on tour, as well as other support services provided for them, which the WNT alleged were inferior to those same services available to the MNT members or not paid for at all by the Federation. After three years passed without any progress at the EEOC, the WNT took their case to the U.S. District Court for the Central District of California in Alex Morgan et al. v. U.S. Soccer Federation, Inc. (2:19-cv-01717/filed 3/8/19 in U.S. District Court, Central Dist. of California, Western Division) citing gender discrimination in wages and unequal working conditions.

The matter was intensely litigated, with heavy discovery, and involved the Federation’s argument that, in accordance with “indisputable science,” men are superior to women. This assertion generated from the Women’s Team a statement that the Federation’s strategy reflected “blatant misogyny.” In the early phase of the case, the court dismissed the equal pay claim brought under the Equal Pay Act, finding that, based upon data showing that WNT members, over a certain period of years, were paid more than the men due to their respective collective bargaining agreements and other financial benefits such as bonuses, making their compensation package greater than that of the MNT’s package. The dismissal of that claim left the issue of unequal working conditions to be addressed. (This outcome was labeled a “crushing blow” to the WNT in a May 1, 2020 New York Times article.) Although the Federation was surely pleased by the dismissal of the EPA claim, that part of the court’s final ruling remains ripe for appeal, as has been noted by the WNT members.

Ultimately, a federal judge in the Morgan case issued an opinion in May 2020, finding for the Federation.⁸ The ruling affirmed the dismissal of the EPA claim and granted the defendant’s motion for summary judgment on the claim that the WNT suffered unequal working conditions. Yet it appears that in the months following the release of that ruling, the two sides were conferring on these still unresolved issues, and at the beginning of December, the WNT and the Federation announced they had reached agreement regarding the long list of working conditions the WNT had challenged. Details of that settlement agreement have not been made public, though the Federation reps stated that the settlement reflected its efforts “to find a new way forward” with the women’s team and perhaps an end to the litigation. And that would leave us, the lawyers, and the rest of the public, without a hope that an appeal on that issue, in addition to the EPA claim, might clarify what kinds of actions or lack thereof constitute working conditions that are or might be defined in the gender category as discriminatory.

What Might the Future Hold for Employees Who Are Victims of Illegal Discrimination?

Even though claims against employers continue to be filed, should we or should we not still applaud ourselves for making progress, albeit slowly, towards equality? Or, in light of ongoing workplace issues as identified in the three cases analyzed in this article and their outcomes, should we continue to press on toward a better future? Or both? That future would be one where the numbers of illegal incidents and complaints of discrimination decrease and employers finally “get the picture.” And not simply due to the fear of retaliation against the complainant (which though prohibited, does occur) that discourages victims from reporting illegal treatment.

My wish is for us, as lawyers, to continue to be vigilant regarding claims and rulings and independent resolutions concerning illegal discrimination in the workplace, especially in working conditions. We need better descriptors and a broader range of prohibited workplace conditions that employees in protected groups must endure and that even common sense tells us are unfair, cruel, demeaning, even inhumane. This goal must be achieved because employers and often the courts that hear the complaints of the workers seem poised to consider such conditions outside the realm of discrimination because those conditions do not relate to hiring, firing, promotion and other categories, and, unfortunately, they have some legal precedent on which to rely. We also should consider that employers will often argue, in their defense, that even IF such actions occurred, they should be balanced against or even cancelled out by some benefits the employee complainant has received from the employer which is one of the primary arguments made by the defendant employer in the Peterson v. Linear Controls Inc. case.

Meanwhile, stay tuned to a follow-up article on RETALIATION, another workplace phenomenon that often and successfully discourages employees from reporting discriminatory conduct against them by their employers and/or illegal actions against them by fellow workers which management tends to ignore or act appropriately upon. When retaliation is reasonably feared and reporting is ignored, many illegal actions against employees in protected groups have room to proceed, since those who are victimized will not report the abuse.

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