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Seventh Circuit Court of Appeals Announces No "Token" Exception in Discrimination Cases

December 2012

By: Nancy E. Joerg, Esq.

On August 8, 2011, the Seventh Circuit Court of Appeals in Diaz v. Kraft Foods Global, Inc., No. 10-3073, ruled that good treatment by Kraft of one of its Hispanic employees did not justify discrimination against other Hispanic employees.

In this case, a non-Hispanic supervisor allegedly discriminated against four former and one current employee. The non-Hispanic supervisor assigned the five Hispanic employees the worst jobs, such as cleaning parking lots and sewers during the cold winter months, but this same supervisor did not require his non-Hispanic employees to perform these unpopular job duties. The Hispanic plaintiffs also alleged the non-Hispanic supervisor made distressing statements such as "I'm white and I'm right."

The plaintiffs sued Kraft for discrimination in violation of Title VII of the Civil Rights Act.

The case went to the Federal District Court in Chicago which decided that some of the supervisor's statements and conduct could have suggested illegal bias against Hispanics. However, because one of the supervisor's Hispanic workers was not subject to the same alleged treatment, the Federal District Court found that the evidence did not support a finding of illegal discrimination and Kraft was therefore entitled to summary judgment. The plaintiffs thereafter appealed.

The Seventh Circuit Court of Appeals rejected the Federal District Court's decision. Following a United States Supreme Court case ( Connecticut v. Teal, 451 U.S. 440 [1982]), the Seventh Circuit Court of Appeals held that "there is no token exception to anti-discrimination law." It explained, "Title VII would have little force if an employer (in this case, Kraft) could defeat a claim of discrimination by treating a single member of the protected class (in this case-Hispanics) in accordance with the law." Moreover, "the principal focus of [Title VII] is the protection of the individual employee, rather than the protection of the minority group as a whole."

The Seventh Circuit Court of Appeals further explained: "Suppose the district court's view carried the day: a female suffering from discrimination on the basis of her sex would have to establish that her employer discriminated against all women in the workplace to assert a sex discrimination claim. That, sensibly, is not how Title VII operates."

The Seventh Circuit Court of Appeals stressed that discrimination against one Hispanic employee violates the discrimination laws, no matter how well another Hispanic employee is treated. There is no token exception to anti-discrimination law. Congress never intended to give an employer - in this case, Kraft - license to discriminate against some employees on the basis of race or sex merely because the employer favorably treats other members of the employees' group.

Clearly, employers should be alert to the fact that treating one "minority" or "protected" employee in a favorable manner (i.e., tokenism) does not mean that the employer cannot be found guilty of discrimination against other employees of the same group.

Questions? Call Attorney Nancy E. Joerg of Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.