7th Circuit Overrules “Convincing Mosaic” Method of Proof in Title VII Cases

By: Shelbie J. Byers, Drewry Simmons Vornehm, LLP

On August 19, 2016, a three-member panel consisting of Judges Posner, Easterbrook and Hamilton, of the 7th Circuit Court of Appeals, which decides cases from federal circuit courts in Indiana, Illinois and Wisconsin, overruled a cadre of cases which had used a “convincing mosaic” method of reviewing evidence as direct or indirect in Title VII Cases. Direct evidence of employment discrimination usually requires actual admissions of culpability, while the indirect method of proof relies on raising an inference of discrimination based on the circumstantial evidence presented.

The Seventh Circuit Court of Appeals in Ortiz v. Werner Enterprises, Inc., No. 15-2574 (7th Cir. Aug. 19, 2016), ruled that the district court had impermissibly looked at both direct evidence standards and indirect evidence standards as requiring a “convincing mosaic” of discrimination as a separate legal test when reviewing the evidence in the case. The court ruled that the proper inquiry into the evidence should have been: Whether a reasonable juror could conclude that the plaintiff would have not had the adverse employment action (in the Ortiz case a termination) if not for the protected class, and everything else remained the same. The court explained that the use of “convincing mosaic” in previous cases was a metaphor to illustrate why courts should not differentiate between direct and indirect evidence because not all evidence can be sorted into boxes, but rather, it should be looked at as a whole to identify the pattern the evidence reveals. Instead, courts and litigants have morphed the convincing mosaic metaphor into a separate test often used in conjunction with labeling direct or indirect evidence. The court emphasized that the holding is consistent with the Title VII burden-shifting framework of the McDonnell Douglas test, stating that the Ortiz case is only concerned about the proposition that evidence must be sorted into different piles, labeled “direct” and “indirect” and then evaluated differently.