HRA Sexual Orientation Claim
Fails Against City of Chicago
Streets and Sanitation Ex-employee
Not a Victim under Human Rights Act
Nature of Protected Class alters
Disparate Treatment Analysis?
In Tawanna Young v. Illinois Human Rights Commission et al, 2012 IL App (1st) 112204, decided this week, the First District Appellate Court in Chicago wrestled with claims that a laborer working for the city was denied overtime, and then fired in 2008 because of her homosexual orientation.
In upholding a ruling in favor of the city the court of appeals saw no disparate treatment between Young and others in the allotment of overtime. The court found that she had been offered no less overtime than others who had less, and more, seniority. Although the sexual orientation of other laborers as “comparatives” was not in the record, the court stated “these facts do not demonstrate an abuse of discretion in finding that the City treated similarly-situated, non-homosexual employees more favorably treated.
Similarly the court refused to disturb 1) a ruling by the Commission that a reprimand and suspension suffered by Young for smoking in a work van were non-discriminatory, based on the fact that there were other instances where other laborers (orientation unknown) were similarly disciplined; and 2) a ruling that her dismissal for absenteeism was discriminatory, since there was no evidence that similarly situated laborers in the past had not been dismissed for excessive absenteeism.
The record reflected that Young was less than clear in her allegations that similarly situated, straight co-workers were better treated. But the court did not address this failure of proof directly. It ruled on proof of similar treatment of others irrespective of their sexual orientation. Until the law develops in this area, employers should assume that it will be the claimant’s duty to show that similarly situated individuals not of the claimant’s orientation were better treated. The implication in Young is that the more examples of similar treatment an employer can muster, the more persuasive the defense, inasmuch as at some point a trier of fact will assume twenty co-workers will include a significant constituent of individuals not of the claimant’s orientation. This will however may not relieve you of the responsibility of proferring examples of straight or gay individuals who have self-identified as such.
For direct evidence of animus, Young declared in the record that her boss had referred to her as a “he”. The court found that, even if this were true, it was an isolated comment, insufficient to meet the burden of proving direct evidence of sexual orientation discrimination.