Not All Bad (Even Real Bad) That Happens at Work Is Discrimination

Judge Easterbrook of the 7th Circuit, who was otherwise being taken to task today for a podium comment, see f/k/a's post, Frank Easterbrook calls juries "twelve high school dropouts", was straight forward in his explication of the law of the workplace as he affirmed summary judgment for an employer, even though concluding:

If Shafer is describing events accurately, he has a solid claim against Dill under state tort law for both assault and battery. What he lacks, however, is a claim against Kal Kan for sex discrimination. The district court has protected Shafer’s tort claim by dismissing it without prejudice. The judgment dismissing the Title VII claim on the merits is affirmed.

Shafer v. Kan Kan Foods, Inc.(7th Cir. 8/1/05) [pdf].

The incidents which led to those words were graphically described:

Dill, who earlier had remarked that Shafer has a “cheerleader ass” that “would look real nice on my dick,” forced Shafer’s face down to his crotch (while clothed), moving his groin to give the impression that Shafer was performing fellatio. A few weeks later, in the same company, Dill grabbed Shafer’s hand and moved it to his crotch
(again while clothed) while moaning as if Shafer were masturbating him. The force was enough to put Shafer in fear that Dill would break his arm. The next month Dill approached Shafer in the locker room when Shafer was not wearing a shirt and pulled a handful of hair from Shafer’s chest, causing considerable pain. Finally, in August 2001 Dill bit Shafer in the neck hard enough to raise welts, though not to penetrate the skin. All four episodes appear to be designed to demonstrate physical domination.

Although those might well be a violation of state tort law, Shafer could not show that they were done by the employer, as Dill, the tormentor was a co-worker not an employee; nor that the incidents were severe or pervasive as required to establish sexual harassment. In the Court's view, Shafer had not established that Dill's conduct "reflected more than personal animosity or juvenile behavior."

Shafer's retaliation claim had also gone by the wayside as he was unable to show that the person to whom he complained was the appropriate person or that she had told those who later terminated him. Without knowledge of his complaint, it could not have been the cause of his termination. Or as Judge Easterbrook puts it in his inimitable fashion, "post hoc ergo propter hoc is not a good way to establish causation." ("after the fact, therefore because of the fact" in case your latin is a little rusty). But not content to let it go at that, Judge Easterbrook riffing like a jazz musician goes on to nail the point:

Shafer insists that, because he was a good worker, and the others involved were not cashiered, his complaints must have caused his discharge. That approach would turn the federal judiciary into a body of employment arbitrators asking whether personnel decisions are supported by “just cause.” The lack of “just cause” would establish that forbidden discrimination or retaliation was the real cause. That’s not what federal law says. The burden of persuasion is the plaintiff’s.

It may not be Miles Davis, but it's pretty damn good, and certainly music to an employer's lawyer's ears.