The Seventh Circuit recently held on-call duty is a legitimate work expectation even though an employer fails to include it in the job description. Huang v. Continental Cas. Co., 754 F.3d 447 (7th Cir. 2014). In Huang v. Continental Casualty Company, an Asian-American plaintiff asserted race, national origin, and retaliation claims under Title VII and Section 1981 against his employer when he was fired after refusing to work on-call duty during the weekend. The trial court granted summary judgment to the employer.

On appeal, the employer asserted that plaintiff failed to meet work expectations by refusing on-call weekend duty while plaintiff argued his job description failed to list on-call weekend duty as a requirement. The Seventh Circuit agreed with the employer and found that its failure to memorialize the requirement in the job description did not invalidate it as a legitimate work expectation.

Going further, the Seventh Circuit rejected plaintiff's contention that he met work expectations because he offered a suitable alternative to the on-call weekend duty requirement. For example, he offered to work in the office on Sundays but refused to carry a pager on Saturday and Sunday.

Providing leverage for employers who require employees to work undesirable shifts, the court stated, "although a longing to spend more time with family is understandable, it does not undermine the legitimacy of a work schedule that cuts into family time." Huang, 754 F.3d at 451. The court also found plaintiff failed to identify similarly situated non-Asian or non-Chinese employees who were treated more favorably than plaintiff. Under Huang, an employer is entitled to decide whether an employee is meeting its legitimate work expectations and will not be found liable for terminating an employee who refuses to do so.