The United States Supreme Court recently declined an attempt to revive a race bias retaliation lawsuit against the law firm, Baker & McKenzie LLP, leaving in place the Seventh Circuit’s ruling that her discrimination claims were time barred and her retaliation claim was speculative.
The events of Swanson v. Baker & McKenzie LLP began in 1995, when Gloria Swanson, a black woman, worked as a secretary for one of the law firm partners. She did not get along with him and requested a transfer. After her request was denied, Swanson decided to resign from the job, where she had worked for five years. She refused to sign a release that would have prohibited her from filing a lawsuit, believing that white secretaries in her position had received transfers in the past. Swanson was eventually able to negotiate a more favorable arrangement.
Swanson then obtained similar positions at other Chicago law firms, including one where she worked for 14 years before being laid off in 2011. After a stint of unemployment, during which time she was rejected at the final stage for many positions, Swanson hired a reference check company. The company contacted Baker & McKenzie in July 2012 and learned that the Human Resources Manager could not find her in its system, and thus could neither confirm nor deny her employment at the firm. The department claimed that the payroll records had recently changed, but that they would try to obtain access to the old records. Swanson found the explanation to be suspicious because the department was able to confirm the employment of a partner who died in 2007 and had worked for the firm for 50 years.
In September 2012, the Baker & McKenzie Human Resources department verified that they had located Swanson’s employment records and would confirm that information as soon as Swanson signed a release. After Swanson did so, the department shared her employment information with at least one firm that sought a reference.
Swanson filed a racial discrimination claim with the Equal Employment Opportunity Commission (EEOC), alleging that the law firm discriminated against her due to her race and had retaliated against her for engaging in a protected activity. After the EEOC issued her a right-to-sue letter in August 2012, Swanson filed a suit in federal district court that was dismissed. Swanson then appealed to the Seventh Circuit Court of Appeals.
The Seventh Circuit determined that her racial discrimination claim from 1995 was time barred, and that even though the statute of limitations was an affirmative defense, district courts may grant judgment on the pleadings if there was no way to save the claim.
Furthermore, the Court found Swanson’s theories of racial discrimination to be problematic. The first was that Baker & McKenzie must have committed an adverse employment action when it told prospective employers that it could neither confirm nor deny that she had worked for the firm. Swanson claimed that any prospective employer would therefore determine that she was lying when she said that she did work for the firm. The Court determined that the Human Resource department’s actions did not rise to the level of retaliation. Furthermore, there was no evidence that the department had issued a false statement about Swanson that damaged her reputation. As such, the Seventh Circuit affirmed the lower court’s decision. The Supreme Court’s denial of the case means that the Seventh Circuit’s decision stands.
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