On Oct. 26, the US Senate voted 52-48 to confirm Judge Amy Coney Barrett to the Supreme Court. Her appointment fills the vacancy left by late Justice Ruth Bader Ginsburg and cements a conservative majority on the court. Much of the discussion surrounding Judge Barrett’s confirmation process has focused on issues like abortion rights and healthcare, but there are also implications for the workplace in cases related to employment matters.
Employers may be curious – what should they expect now that Justice Barrett is firmly seated on the court?
While there’s no way to tell for certain how Justice Barrett would rule in any type of case, we can look at her history on the US Court of Appeals for the Seventh Circuit to shed some light on how she’s interpreted the law in past employment cases. In this overview, we highlight six relevant cases from Justice Barrett’s judicial record that HR leaders may find insightful.
In June 2020, the Seventh Circuit held that the termination of Lisa Purtue was based on a violation of employer rules and not the result of discrimination. Purtue was fired from her role as a Wisconsin correctional officer for filing a false report that a prisoner hit her with an empty snack cake box he threw at her from his cell. Video footage showed that the box wasn’t actually thrown in her direction and didn’t strike her. Purtue was immediately dismissed following an investigation for violating the workplace rule and directive that prohibit lying or providing false information, which is listed as serious misconduct.
Purtue claimed that the Wisconsin Department of Corrections fired her because of her sex. She said that the department misconstrued her statements, failed to critically examine the prisoner’s version of events, and exaggerated the disciplinary consequences the prisoner faced if her claims were true.
In the opinion, then-Judge Barrett wrote that none of Purtue’s claims proved that the Department fired Purtue for anything other than filing a false report in violation of Department rules. Her employer considered false reports to be serious because prisoners guilty of assault could potentially be sent to a maximum-security facility, and so her dismissal was “not a situation in which the punishment was grossly out of proportion to the offense.”
In August 2019, the Seventh Circuit determined that Terry L. Smith, an emergency traffic patrol worker, failed to prove that the Illinois Department of Transportation subjected him to a hostile work environment under Title VII and fired him in retaliation for his accusations of racial discrimination by colleagues.
In the opinion written by then-Judge Barrett, the court concluded that the employer presented enough evidence to show that Smith’s termination was due to his poor performance record. It also held that he didn’t sufficiently connect the harassment he experienced to race under Title VII. While Judge Barrett acknowledged that one incident involving a racial slur “plainly constitutes race-based harassment,” she wrote that Smith was unable to show that this caused him distress he wasn’t already experiencing due to non-race-based harassment.
“The n-word is an egregious racial epithet,” Judge Barrett wrote. “That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that [colleague’s] use of this word altered the conditions of his employment and created a hostile or abusive work environment. And he must make this showing ‘from both a subjective and an objective point of view.’”
In August 2020, the Seventh Circuit held that food delivery drivers for Grubhub were subject to arbitration agreements and unable to bring a class action lawsuit to court. The drivers had sued Grubhub, arguing that they were misclassified as independent contractors rather than employees and that Grubhub violated the Fair Labor Standards Act by withholding overtime pay.
Grubhub moved to settle the claims outside of court, but the drivers believed that their jobs fell under the interstate commerce exemption of the Federal Arbitration Act. In other words, the drivers held that because they carried goods that at one point or another had moved across state lines, they should be able to bring their class action lawsuit to court.
Writing for the court, then-Judge Barrett noted that there was no proof that interstate movement of goods was central to the delivery drivers’ job description. To fall within the exemption, Judge Barrett wrote, “the workers must be connected not simply to the goods, but to the act of moving those goods across state or national borders.”
In 2018, then-Judge Barrett wrote a decision in favor of Robert Smith, a grocery store worker at Rosebud Farm who sued his employer after years of sexual and racial harassment by his male colleagues and supervisor.
Rosebud Farm believed the incidents didn’t constitute sex-based discrimination because only men worked behind the meat counter. However, Rosebud Farm employed women who occasionally worked in the meat department, and the harassment also occurred away from the meat counter. The ruling upheld that Smith’s claims of illegal sex discrimination were valid because there was sufficient evidence that men alone were targeted.
“The shop was a mixed-sex workplace, and only men were groped and taunted,” Judge Barrett wrote. “Because men were treated differently from women at Rosebud, a reasonable jury could conclude that Smith was tormented because of his sex.”
In 2018, the Seventh Circuit upheld a determination that Costco subjected employee Dawn Suppo to a hostile work environment by failing to protect her from a customer’s sexual harassment. The customer harassed her for over a year until she secured a restraining order against the customer and then took unpaid medical leave to deal with the trauma.
The Equal Employment Opportunity Commission sued on behalf of Suppo after Costco fired her for not returning to work once the leave expired after 12 months, and a jury awarded her $250,000 in damages. Costco appealed, saying the incidents were too “tepid” to create a hostile work environment.
“A reasonable juror could conclude that being hounded for over a year by a customer despite intervention by management, involvement of the police, and knowledge that he was scaring her would be pervasively intimidating or frightening to a person ‘of average steadfastness,’” then-Judge Barrett wrote in affirmation.
Judge Barrett also reversed the lower court by writing that Suppo may be entitled to back pay covering her period of unpaid leave if she could prove that the working conditions forced her to take the leave.
In 2019, then-Judge Barrett joined the majority opinion in ruling against Dale Kleber, who was a 58-year-old attorney when he sued CareFusion Corporation for age discrimination after he applied for a position but was rejected in favor of a 29-year-old applicant.
The job description required “3 to 7 years (no more than 7 years) of relevant legal experience.” Under the Age Discrimination in Employment Act (ADEA), Kleber filed a disparate impact claim, which covers employment practices that seem neutral on their face but that in practice negatively affect older workers, in this case.
In a divided opinion, the Seventh Circuit upheld that only current employees, not job applicants, were protected from disparate impact under the ADEA.
It’s hard to say, but looking at the cases above, it’s clear that then-Judge Barrett ruled favorably to both employers and employees throughout her time on the Seventh Circuit.
An analysis by watchdog group Accountable.US found that during her tenure, Judge Barrett voted pro-business in 76% of the cases where individuals and corporations were in opposition. Looking specifically at the cases involving employment matters, 23 out of the 30 cases were decided in favor of the employer. Judge Barrett wrote the opinion in four pro-business and two pro-employee decisions.
Regardless of how Justice Barrett rules during her time on the Supreme Court, she now has the power to influence the future of labor and employment law. You must stay up to date with any change in these laws to ensure compliance throughout the entire employee lifecycle and avoid costly penalties and lawsuits. With a single source of accurate employment rules and regulations, you’ll be prepared to tackle shifting laws and create compliant and competitive HR policies. Contact us here to learn more about how our solution empowers your HR operations.
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Written by Annalisa Rodriguez