By Heather Renée Adams

In its August 19, 2016 decision in Henry Ortiz v. Werner Enter., Inc., 2016 WL 4411434 (7th Cir. Aug. 19, 2016), the Seventh Circuit Court of Appeals reiterated that the "Convincing Mosaic" standard is not a legal requirement—it's a metaphor. The Court instructed district courts to "stop separating 'direct' from 'indirect' evidence and proceeding as if they were subject to different legal standards."

The Seventh Circuit explicitly rebuked the process of reviewing direct evidence in isolation from circumstantial evidence. And, in doing so, overruled a long line of cases, including Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Cir. 2000), to the extent that those opinions insist on the use of the direct and indirect framework.

District courts should look at all evidence, circumstantial and direct, and determine whether such evidence, in aggregate, would permit a reasonable factfinder to conclude that a plaintiff's race, ethnicity, sex, religion or other protected classification caused an employer to engage in discriminatory behavior.

The bottom line for defense attorneys is that this rearticulated standard may make it increasingly difficult for employers to obtain summary judgment as direct and indirect evidence will now be considered jointly.