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Discrimination against some Hispanic employees violates federal anti-discrimination laws even if the company doesn’t discriminate against others, the U.S. Court of Appeals for the 7th Circuit has ruled. On Aug. 8, a unanimous panel in Peña v. Kraft Foods Global Inc. held that “there is no token exception to anti-discrimination law.” The 7th Circuit reversed a summary judgment ruling in favor of Kraft Foods by Judge Ronald Guzmán of the Northern District of Illinois over claims brought by Jose Diaz and Ramon Peña. Diaz and Peña claimed the company discriminated against them by failing to offer them new jobs after outsourcing some positions at a Glenview, Ill., Tech Center. The 7th Circuit affirmed Guzmán’s summary judgment for Kraft concerning a disparate pay claim by a third plaintiff, Alberto Robles. Diaz and Peña were hourly, long-term employees at Kraft who lost their jobs in November 2008 following the outsourcing. They appealed the lower court’s denial of their claims brought pursuant to Title VII of the Civil Rights Act of 1964. They built their case on the so-called direct method of proof, which involves producing direct or circumstantial evidence that would enable a jury to infer that discrimination motivated an adverse employment action. Judge Diane Wood authored the opinion, joined by judges Michael Kanne and Diane Sykes. Wood rejected Guzmán’s conclusion that Diaz and Peña’s evidence did not support an inference of discrimination because at least one Hispanic was not assigned to “disfavored tasks such as scrubbing parking lots and cleaning sewers outside during the winter.” “We reject this line of analysis. 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,” Wood wrote. Wood went on to note that “the employer cannot satisfy its burden by identifying a person within the protected class who was not similarly discriminated against.” Wood then analyzed the supervisor’s role in “the irregular hiring processes” for several jobs that would become available at Kraft after the outsourcing. She found that the way the supervisor structured the hiring process for certain technician positions “could raise an inference of discrimination.” “We note…that Kraft’s assertion that even if Diaz and Peña had been considered for the senior technician positions, they would not have been hired because they lacked sufficient mechanical skills, is beside the point,” Wood wrote. “Under the direct method of proof, the plaintiffs are not required to rebut a defendant’s non-discriminatory reason for the adverse employment action, as they must under the indirect method.” Wood also determined that the district court erred when it evaluated Diaz and Peña’s claim that Kraft unlawfully discriminated against them when filling sanitation positions that would be open after the outsourcing. She observed that, although four Hispanics were considered for those positions and at least one was hired, “Diaz and Peña are raising individual disparate treatment claims, not a broad-based pattern or practice claim.” In addition, Wood found that the district court “failed properly to evaluate” a comment the supervisor made to Betty Flores, a Hispanic woman who was hired for a sanitation job then assigned to a night-shift position that she didn’t want. Flores claimed the supervisor said a different employee had been given a day-shift sanitation position because he was white. Flores and Robert Vela were also plaintiffs in the district court case. Flores and Kraft reached a settlement following the summary judgment ruling. Vela did not join the appeal. As for Robles’ claim, Wood wrote that his brief isn’t clear about whether he’s pursuing a disparate pay or a failure-to-promote claim, but the court chose to evaluate his claim under the disparate pay framework. Wood wrote that Robles mistakenly relied primarily on Diaz and Peña’s evidence that purports to prove discrimination in October and November 2008 hiring decisions. Robles, in contrast, filed his U.S. Equal Employment Opportunity Commission charge in June 2008. Wood wrote that the evidence about later Kraft actions “has no bearing on Robles’s claim.” “Once that evidence is out of the picture, there is scant material remaining that “points directly” to an inference that [the decision-making supervisor] paid Robles less than other workers because of ethnic discrimination,” she wrote. Wood concluded that Robles couldn’t move past summary judgment under the indirect method of proof without a valid comparison of his pay with other employees’ compensation. The plaintiffs’ lawyer, Michael Steigmann, a Chicago solo practitioner, said he’s “very happy that the court reaffirmed that an employer can’t discriminate against a whole class of people just by not discriminating against one individual in that class.” “That’s not what our discrimination laws are all about,” Steigmann said. “It’s about fairness for everybody.” Steigmann said he’s still evaluating what to do about Robles’ claim.”We’re not sure of the 7th circuit’s bright line rule that you can’t use any evidence at all after filing an EEOC claim,” Steigmann said. “We don’t know if that’s backed up by the case law. We’re taking a further look at that.” Bryan Cave lawyers who represented Kraft at the 7th Circuit referred questions to the company, which did not immediately respond to a request for comment. Sheri Qualters can be contacted at [email protected].

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