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Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the bases of race, color, national origin, religion, and sex. Federal circuits are currently split on whether discrimination based on sexual orientation falls within the scope of discrimination based on sex (and therefore within the scope of Title VII’s prohibition). On February 26, 2018, the en banc Second Circuit Court of Appeals found in Zarda v. Altitude Express that Title VII’s prohibition of discrimination based on sex does in fact cover discrimination based on sexual orientation, overturning its own precedent holding from almost twenty years prior. This result signals increased viability for challenges advocating a broader interpretation of Title VII to remedy sexual orientation discrimination, as well as a potential pushback by the Jeff Sessions-helmed Justice Department as these challenges arise.


Zarda involved a skydiving instructor (Zarda) who alleged that his employer (Altitude Express) fired him in response to a customer telling them of his sexual orientation. The U.S. District Court for the Eastern District of New York granted summary judgment in favor of Altitude Express on Zarda’s claim, finding that Title VII failed to cover sexual orientation discrimination, and that Zarda failed to establish the type of gender-stereotyping claim covered by the act. The District Court considered itself bound by the Second Circuit’s 17-year-old decision in Simonton v. Runyon, and held that, absent an en banc review by the Second Circuit reversing Simonton, Second Circuit precedent required dismissal. Zarda appealed the summary judgment to the Second Circuit, which granted an en banc review. Writing the majority opinion, Judge Robert Katzmann wrote in the majority opinion that sexual orientation discrimination necessarily involves sex discrimination, as it means discrimination against someone based on their own sex in relation to the sex of those to whom they are sexually attracted. Katzmann noted that although Congress had not sought to address sexual orientation discrimination in Title VII, laws like Title VII “often go beyond the principal evil to cover reasonably comparable evils,” which in this case included sexual orientation discrimination. The Second Circuit thus reversed Simonson, vacated the summary judgment, and remanded the Title VII claim to the District Court.


By allowing such a claim to proceed under Title VII, the Second Circuit joined the Seventh Circuit, which found last April that Title VII covers sexual orientation discrimination in its decision in Hively v. Ivy Tech Community College of Indiana. Hively concerned an adjunct professor who alleged that her employer passed her up for full employment because she was openly gay. Hively argued that she faced discriminated for failing to conform to female stereotypes, and because she publicly identified as a lesbian. The Seventh Circuit reversed and remanded the summary judgment in favor of her employer. It found that “discrimination on the basis of sexual orientation is a form of sex discrimination” and that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” According to the Seventh Circuit, Title VII encompassed both her gender non-conformity and sexual orientation discrimination allegations.


The Eleventh Circuit held otherwise in Evans v. Georgia Regional Hospital, decided on March 10, 2017. The case involved a male-identifying security hospital security guard (Evans) allegedly dismissed from employment for failing to present as a woman. Like the plaintiff in Hively, Evans argued that she suffered discrimination due to her gender non-conformity, which she argued fell within the scope of Title VII’s prohibition of sex discrimination. The Eleventh Circuit agreed that Title VII protected against this type of discrimination, but found that she failed to make a prima facie showing of it. The Eleventh Circuit distinguished discrimination based on gender non-conformity from discrimination based on sexual orientation, and found that Title VII did not address the latter.


In Franchina v. City of Providence, decided on January 25, 2018, the First Circuit heard the city’s appeal of a verdict and judgment against it for a female firefighter’s Title VII claim that her employer provided her with a hostile workplace, where she suffered discrimination as both a woman and a lesbian. She proceeded under a “sex-plus” theory, or a gender discrimination claim alleging that an employer classifies employees based on their sex “plus” another characteristic (in this case, sexual orientation). The First Circuit held in denying the city’s challenge that the plaintiff’s claim of sexual orientation discrimination, although not technically redressable under Title VII, did not cause her meritorious sex discrimination claim to fail. In a jurisdiction following Zarda’s reasoning, this “sex-plus” heuristic becomes less meaningful or necessary for the plaintiffs to resort to, where sexual orientation itself becomes a protectable distinction. The difference between two jurisdiction’s analyses in cases like Franchina underscores the stakes in the national push for Circuit reconsideration of narrow judicial applications of Title VII.


After these cases, a pronounced Circuit split exists on the scope of Title VII’s coverage. On December 11, 2017, the Supreme Court refused certiorari for the plaintiff’s appeal in Evans, but more appeals to the Court’s jurisdiction on this issue appear imminent. The Second Circuit’s reversal appears to increase the impetus for the Supreme Court to address this question. In the meantime, state legislatures draft their own provisions aimed at remedying the type of discrimination typified by these suits.

CCG_Seal_260x2001On June 13, 2017, the Illinois First District Appellate Court issued an unpublished opinion holding that a Cook County judge erred in denying a forum non conveniens motion where essentially the entire case rests not in Plaintiffs’ chosen forum of Cook County, but in Winnebago County.[1]


The doctrine of forum non conveniens is premised on “considerations of fundamental fairness and sensible and effective judicial administration.”[2] It assumes that more than one forum possesses the power to hear a case, but permits a court to decline jurisdiction where another forum can “better serve the convenience of the parties and the ends of justice.”[3]  In determining whether to accept or decline jurisdiction, the court must balance private interest factors affecting the convenience of the litigants and public interest factors affecting the administration of the courts.[4]


The private interest factors the court considers include the convenience of the parties; the relative ease of access to testimonial and documentary evidence; and other practical matters, which tend to make a trial “easy, expeditious, and inexpensive.”   The public interest factors include the interest in deciding controversies locally; the unfairness of imposing trial expense and the burden of jury duty on residents of a forum with little connection to the litigation; and adding litigation to already congested court dockets.


In cases such as Rohl, where the primary issue is one of product liability, Illinois courts have found that the location of the accident is less significant and largely supplanted by a more general interest in resolving a claim concerning an allegedly defective product.[5] Also, because a jury visit to the accident site is generally unnecessary, the significance of this factor is further diminished in product liability claims.[6] On appeal, forum non conveniens decisions are evaluated using an abuse of discretion standard in Illinois.  Therefore, it is somewhat of an understatement to say that it is difficult to overturn a trial court’s decision regarding a forum non conveniens motion in Illinois, particularly in a product liability case.


Here, Plaintiffs Irvin and Marlene Rohl sued several defendants in Cook County alleging that asbestos exposure led to Mr. Rohl’s fatal lung cancer.  Certain defendants filed motions to transfer the matter from Cook County to Winnebago County under the doctrine of forum non conveniens.  The Cook County trial judge denied the motions, citing Mr. Rohl’s attendance at a trade school in Cook County in the late 1940s where, according to the Court’s ruling, Mr. Rohl was exposed to asbestos.  The appellate court initially denied the petition for review of the trial court’s denial of the forum non conveniens motion.  However, in December 2016, the Illinois Supreme Court entered a supervisory order directing the appellate court to grant the petition and resolve the forum non conveniens motion on its merits.


The complaint, filed in January 2016, alleged that Mr. Rohl was exposed to asbestos through his employment as a laborer, heavy-equipment operator, and mechanic from 1950 until 1999.  Specifically, Plaintiffs alleged that Mr. Rohl worked with asbestos-containing brakes, gaskets, clutches, engines, heavy-duty equipment and vehicles.


During discovery related to forum non conveniens motions, Mr. Rohl provided a summary of his various places of employment where he claimed exposure to asbestos. The only exposure relating to Cook County was at an automotive and diesel trade school from 1946 to 1947.  In contrast, Mr. Rohl worked in Winnebago County for over 45 years.  Aside from the trade school, and brief work in the early 1950s in Indiana and in Stephenson County, Illinois, Mr. Rohl worked in Winnebago County from 1953 to 1999.


Here, both the private and public interests overwhelmingly favor Winnebago County.  The Rohls lived their entire adult life in Winnebago County. From 1957 until his retirement in 1999, Mr. Rohl worked for the same employer in Winnebago County.  Mr. Rohl’s co-workers at live in Winnebago County. The majority of Mr. Rohl’s medical treatment took place in Winnebago County.  Mr. and Mrs. Rohl’s surviving adult children all live in Winnebago County.


In contrast, Cook County has a very tenuous connection to the issues in the case.  It is true that Mr. Rohl attended an automotive trade school in Cook County for a total of six months in 1946 and 1947. However, when asked at his deposition whether he believed he was exposed to asbestos during his attendance at the trade school, Mr. Rohl responded “No. Not sure.”  None of Mr. Rohl’s medical care providers were based in Cook County.  Thus, all of the testimonial or documentary evidence related to Cook County stems from the automotive trade school – about which Mr. Rohl provided testimony prior to his passing.


Overall, the private interest factors weigh strongly in favor of transfer to Winnebago County. After analyzing the record, the convenience of the parties did not strongly favor either forum.  Turning to the ease of access to testimonial and other sources of evidence, Winnebago County is strongly favored. All identified potential witnesses, including Mr. Rohl’s family members, co-workers, and most treating physicians (with the exception of physicians who treated Mr. Rohl at the Mayo Clinic in Arizona), reside or work in Winnebago County. Whereas, not a single witness who works or resides in Cook County was identified. Mr. Rohl’s employment records are maintained in Winnebago County, which is also the location of the primary site of Mr. Rohl’s alleged asbestos exposure between 1953 and 1999.  Additionally, Mr. Rohl’s medical records are maintained in Winnebago County.


The public interest factors likewise weigh strongly in favor of transfer. The controversy is local to Winnebago County.  Mr. Rohl worked in Winnebago County for 45 years, thus it is the primary site of Mr. Rohl’s alleged occupational exposure to asbestos.  Based on Mr. Rohl’s own testimony it is, at best, uncertain whether any exposure to asbestos occurred in Cook County.


On appeal, the Court found Plaintiffs’ argument that hundreds, perhaps thousands, of Cook County residents may have come into contact with defendants’ asbestos-containing products unavailing. Specifically, this speculation is insufficient to establish a “significant factual connection” to Cook County, so as to render this case a local controversy.  The court also performed an analysis of court congestion between the counties, but found it a relatively insignificant factor.  Given the lack of connection to Cook County, the appellate court found that it would be manifestly unfair to burden Cook County residents with jury duty and trial expenses associated with litigating the matter in Cook County.


Finding that the circuit court abused its discretion in denying the forum non conveniens motion, the order was reversed and the case was remanded with directions to grant defendants’ forum non conveniens motion.  Although unpublished, Rohl will undoubtedly guide the Illinois courts on the application of forum non conveniens going forward.  Matters as simple as ascertaining where medical care was received and where a plaintiff’s family lives can pay dividends if plaintiff appears to be forum-shopping – at least in Illinois.


[1] Irvin Rohl and Marlene Rohl v. Borg Warner Corp., et al., 2017 IL App (1st) 162398-Unpub.

[2] Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill. 2d 158,169 (2005).

[3] Id.

[4] Erwin v. Motorola, Inc., 408 Ill. App. 3d 261, 274 (2011); Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 443-444 (2006) (citing First American Bank v. Guerine, 198 Ill. 2d 511, 516-17 (2002)).

[5] Taylor v. Lemans Corp., 998 N.E.2d 609, 617 (2013), citing Ammerman v. Raymond Corp., 884 N.E.2d 1221 (2008).

[6] Id., citing Hinshaw v. Coachmen Industries, Inc., 745 N.E.2d 583 (2001).