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United States EEOC v. Autozone, Inc.

United States Court of Appeals for the Seventh Circuit

November 21, 2017, Decided

No. 15-3201

Opinion

 [*860]  On Petition for Rehearing En Banc.

Per Curiam. On consideration of the EEOC's petition for rehearing, the panel has voted unanimously to deny rehearing. A judge in active service called for a vote on the request for rehearing en banc. A majority of judges in active service voted to deny rehearing en banc. Chief Judge Wood and Judges Rovner and Hamilton voted to grant rehearing en banc.

It is therefore ordered that the petition for rehearing and for rehearing en banc is Denied.

Dissent by: WOOD; ROVNER; HAMILTON

Dissent

 [*861]  Wood, Chief Judge, and Rovner and Hamilton, Circuit [**2]  Judges, dissenting from denial of rehearing en banc.

This case presents a straightforward question under Title VII of the Civil Rights Act of 1964: Does a business's policy of segregating employees and intentionally assigning members of different races to different stores "tend to deprive any individual of employment opportunities" on the basis of race? The panel answered this question "not necessarily." I cannot agree with that conclusion. The importance of the question and the seriousness with which we must approach all racial classifications convince me that this case is worth the attention of the full court.

Title VII makes it unlawful for any employer to "limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). The Equal Employment Opportunity Commission argues that AutoZone violated this provision when it used race as the defining characteristic for sorting employees into separate facilities—in this case, a "Hispanic" store located at South Kedzie Avenue and West [**3]  49th Street, and an "African-American" store in Chicago's Roseland neighborhood. The Commission, whose factual allegations we must credit at this stage, claims that AutoZone went so far as to transfer one African-American employee, Kevin Stuckey, from the Kedzie store to the Roseland store in order to ensure the racial homogeneity of both locations.

Under the panel's reasoning, this separate-but-equal arrangement is permissible under Title VII so long as the "separate" facilities really are "equal." In other words, if a Title VII plaintiff cannot prove that her employer's intentional maintenance of racially segregated facilities diminished her "pay, benefits, or job responsibilities," then her employer has not violated section 2000e-2(a). See EEOC v. AutoZone, Inc., 860 F.3d 564, 565, 566, 567, 568 (7th Cir. 2017). That conclusion, in my view, is contrary to the position that the Supreme Court has taken in analogous equal protection cases as far back as Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), and it is contrary to the position that this court took in Kyles v. J.K. Guardian Security Services, Inc., 222 F.3d 289 (7th Cir. 2000).

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875 F.3d 860 *; 2017 U.S. App. LEXIS 23704 **; 101 Empl. Prac. Dec. (CCH) P45,921; 2017 WL 5588734

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. AUTOZONE, INC., and AUTOZONERS, LLC, Defendants-Appellees.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 5579 — Amy J. St. Eve, Judge.

United States EEOC v. AutoZone, Inc., 860 F.3d 564, 2017 U.S. App. LEXIS 10903 (7th Cir. Ill., June 20, 2017)

CORE TERMS

deprive, employment opportunity, segregation, racial segregation, en banc, employees, adverse effect