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Through Inconsistency and Complicated Arguments, Employer Defendant Warrants Summary Judgment Reversal in Seventh Circuit Pregnancy Discrimination Action

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The Seventh Circuit's recent decision in Jennifer Hitchcock v. Angel Corps, Inc., No. 1:11-cv-00276 (7th Cir. June 11, 2013) makes clear that an employment discrimination defendant should avoid "clever" arguments, instead arguments for summary judgment should be "clear" and "uncomplicated."

Plaintiff Jennifer Hitchcock alleged that her employer Angel Corps, a home care agency, discriminated against her because she was pregnant in violation of The Pregnancy Act after she was fired in connection with a "bizarre incident" involving the death of a potentially 100-year-old patient. Just weeks previous to her termination, Hitchcock had informed her supervisor of her pregnancy. An agreed-upon magistrate judge initially dismissed the action on summary judgment. Hitchcock subsequently appealed.

On appeal the 7th Circuit started its analysis by extensively explaining that "a more straight-forward analysis of whether a reasonable jury could infer prohibited discrimination" needs to be implemented, explaining that the traditional McDonnell analysis is "worn-out." Further, the Court explained that "the various tests that we insist [Plaintiffs] lawyers use to [avoid summary judgment] have lost their utility." The Court's opinion reversing the magistrate's summary judgement decision clearly emphasizes the need for low complexity and technicality in the analysis of discrimination cases. In fact, even though addressed by the Court, it wasn't Hitchcock's various forms of evidence tending to show discriminatory animus, it was the employer's failure to provide a concise and consistent reason for her termination.

The clear take away from this case is that employers, when terminating or otherwise taking any potentially perceived adverse employment action, should unequivocally determine the reasons for said actions, ensure that all decision makers are on board and understand the action, and provide that action reasoning to the employee and in related paperwork. Employers should not attempt to further explain, clarify, or supplement their decisions after the fact. As the Court explained, employers create their own inference of pretextual discrimination through the use of "shifting" or "fishy" reasoning for adverse actions. In light of Hitchcock, keeping it simple is the safest practice.


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