The Seventh Circuit Court of Appeals recently reaffirmed employers’ rights under Title VII to make merit-based hiring decisions, even when it means rejecting a candidate who recently raised a meritorious claim of discrimination.

In Robertson v. Wisconsin Department of Health Services, 949 F.3d 371, 374 (7th Cir. 2020), the plaintiff reported discriminatory conduct in the workplace which resulted in her supervisor’s termination.  The plaintiff then applied for her supervisor’s position but was not awarded the job.  She later complained that the candidate selected to replace her supervisor treated her less than ideally.  The district court rejected the plaintiff’s Title VII retaliation claim because she failed to establish that her prior complaint was the “but-for” cause of her not being promoted and because she couldn’t overcome her employer’s legitimate motive for hiring another candidate. The court further held that the new supervisor’s minor workplace slights are not adverse employment actions that can give rise to a claim for retaliation.

The Seventh Circuit agreed with the district court.  Although the employee claimed that she was “objectively the most qualified candidate” for the director-level position, the Seventh Circuit held that an employee’s “own opinions” about her qualifications were not enough to prove the company’s selection of another candidate was retaliatory.  Rather, the plaintiff had to show that there could be no dispute that she was “clearly better qualified” for the position.  Here, she could not do so because the employer documented its legitimate reasons for selecting another candidate.

The plaintiff also claimed her new boss retaliated against her by disregarding her thoughts and preventing her from performing tasks she was assigned under her previous supervisor.  The court held that being given the “cold shoulder” or “snubbed” by a supervisor is not a materially adverse action that supports a claim for retaliation.  Instead, plaintiffs must show a materially adverse action, like a “change in work hours, compensation, or career prospects.”

The Seventh Circuit’s ruling in Robertson reaffirms several core principles for employers.  First, when making any hiring or promotion decisions, especially when considering a candidate who recently engaged in protected activity, it is critical to document the selection process, including the legitimate business reason for selecting a particular candidate.  Second, not every workplace slight is retaliation.  However, employers should seek counsel before making significant changes to the hours, compensation, or job responsibilities of employees who recently engaged in protected activity.

Jackson Lewis attorneys are ready and able to help employers navigate the complexities of employee complaints and their effects on employment decisions.  Please contact us if you have questions or need assistance.