This week the United States Senate confirmed Amy Coney Barrett as the newest Justice to the United States Supreme Court. President Trump nominated Justice Barrett days after the death of Justice Ruth Bader Ginsburg, the liberal icon who fought against discrimination and inequality in the law. With the addition of Justice Barrett, the Court stands decidedly conservative with a 6-3 majority. Read more about Justice Amy Coney Barrett:
Barrett’s Early Years and Judicial Philosophy
President Trump first nominated Justice Barrett to the 7th Circuit Court of Appeals in 2017. Prior to that, she worked at a private law firm in Washington D.C. and as a professor at Notre Dame Law School. Justice Barrett brings several “firsts” to the Court. She becomes the first Justice to graduate from a non-Ivy League law school and the first Justice to have school-aged children while serving on the bench. She will be the youngest Justice serving on the highest Court at just 48-years-old.
Supreme Court observers classify Justice Barrett as a conservative. In 1998 she was a law clerk to Justice Antonin Scalia, a giant in conservative circles and known for his strict adherence to legal text. At her nomination announcement, Justice Barrett stated that “[Justice Scalia’s] judicial philosophy is mine, too: A judge must apply the law as written. Judges are not policymakers. And they must be resolute in setting aside any policy views they might hold.” www.whitehouse.gov.
Over the next year, the Supreme Court will be hearing many cases that will undoubtedly impact your job and workplace. McOmber McOmber & Luber is committed to providing you with the latest information on these important cases and how you may be affected. Here’s a brief look at some of Justice Barrett’s opinions that may shed light on what’s to come.
PRO EMPLOYER OPINIONS
Perhaps one of the most controversial and talked about cases during her confirmation hearing was Smith v. Illinois Department of Transportation (2019). www.ca7.uscourts.gov.
In Smith, the plaintiff was an Emergency Traffic Patrol Minuteman. From the start of his employment, he had disciplinary problems. His supervisors complained about poor performance and unsafe conduct. He received several poor performance evaluations and his supervisors sent many e-mails documenting problematic behavior.
During the first few months of his employment, the plaintiff complained that he was being treated poorly and discriminated against. Soon thereafter, plaintiff filed a complaint with the EEOC claiming discrimination and retaliation. When one of his supervisors learned about the EEOC complaint, the plaintiff stated that his supervisor called him a “stupid ass ni.”
In addressing the plaintiff’s hostile work environment claim, Judge Barrett wrote that the statement “stupid ass ni” “plainly constitutes race-based harassment.” And that “the n-word is an egregious racial epithet.” Nevertheless, Judge Barrett explained that the plaintiff must demonstrate that that one word altered his terms of employment and created a hostile or abusive working environment. To Judge Barrett, the timing of the n-word utterance was a key factor.
Judge Barrett explained that since the plaintiff had a poor track record of performance way before this racial slur was uttered, there was no evidence that his supervisors were lashing out against him because he was black. By the time the supervisor said the n-word, “[t]hings were already at a breaking point.” Therefore, according to Judge Barrett, the one racial slur did not cause him additional or different stress to state a Title VII claim.
In Wallace v. Grubhub Holdings (2020) employees of Grubhub refused to arbitrate their claims against Grubhub arguing they were exempt from the Federal Arbitration Act (FAA). The employees believed they were “workers engaged in foreign or interstate commerce” and thus exempt from arbitration. www.ca7.uscourts.gov.
Writing for the Court, Judge Barrett went through an exhaustive review of the text of the FAA and found that plaintiffs did not “belong to a class of workers actively engaged in the movement of goods across interstate lines.” The Court held that the exception to arbitration only applies when the interstate movement of goods is a central part of the job description of the class of workers to which they belong. Moving food orders to customers did not qualify as such.
In Kleber v. Carefusion Corporation (2019), Judge Barrett joined with the majority that held that a job applicant cannot file a claim for age discrimination under the Age Discrimination in Employment Act (ADEA) using the “disparate impact” theory. Disparate impact refers to rules, policies, practices etc. that appear to be neutral but have a discriminatory impact on a protected group. The Court ruled that only current employees can invoke this section of the law, not job applicants.
In this case the employer advertised for an in-house attorney position for someone with 3-7 years of experience. The plaintiff had more than 7 years of experience and was 58 years old. The plaintiff did not receive the position, but a 29-year-old applicant who had less than 7 years of experience did.
The plaintiff filed suit and claimed that the language of the text allowed him to bring a disparate impact claim. The 7th Circuit disagreed. The Court read the grammatical construction of the disparate impact section and surrounding text and found that only an employee and not a job applicant can bring a disparate impact claim.
However, the Court reiterated that a job applicant can bring a claim under the “disparate treatment” provision of the ADEA which specifically refers to job applicants.
Not all of Justice Barrett’s opinions came out against employees. Here are some that support their claims.
PRO EMPLOYEE OPINIONS
Hostile Work Environment
In EEOC v. Costco Corporation (2018), Judge Barrett found in favor of the plaintiff who claimed a hostile work environment against her employer. In this case, the plaintiff complained to her employer Costco that a customer was stalking her. The plaintiff’s supervisor observed the behavior on several occasions and the stalking customer was told not to shop at plaintiff’s store anymore.
At some point the plaintiff took medical leave and when she did not return, Costco fired her.
The Court had to determine whether a reasonable jury would determine that the customer’s conduct toward plaintiff was severe or pervasive enough to create a hostile work environment.
Ruling against Costco, Judge Barrett wrote that the perpetrator’s harassing acts do not have to be “overtly sexual” to have a case under Title VII. Instead, the Court need only find whether a reasonable juror could find the conduct to be “objectively intimidating or frightening.” Judge Barrett concluded that the customer’s stalking behavior met this standard.
In Smith v. Rosebud Farm, Inc. (2018), the plaintiff sued his employer Rosebud Farm under Title VII claiming that his male coworkers created a hostile work environment by severely and pervasively harassing him because of his sex.
The plaintiff presented evidence that his male co-workers grabbed him, groped him, and in one case, reached down his pants. They repeatedly mimicked oral and anal sex on him and each other. The plaintiff complained to his supervisor on numerous occasions but to no avail.
The employer argued that the plaintiff’s case should be dismissed because the behavior was not due to plaintiff’s sex but was merely “sexual horseplay.” Writing for the Court, Judge Barrett disagreed and held that “the evidence showed that the plaintiff was harassed because he was male.” Since the plaintiff presented evidence that female employees were not targeted and were left alone, Judge Barrett concluded that the plaintiff was tormented “because of his sex.”
National Origin Discrimination
Writing for the majority in Vega v. Chicago Park District (2020), Judge Barrett sided with the plaintiff-employee that a reasonable jury could conclude the plaintiff was discriminated against due to her national origin in violation of Title VII.
In this case, the plaintiff, who is Hispanic, began working for the Chicago Park District in 1987 and eventually became a park supervisor. In 2011 the employer received tips accusing the plaintiff of leaving work early. Investigators surveilled plaintiff to determine her whereabouts and also questioned plaintiff. The plaintiff was eventually terminated in 2012 for timesheet falsification and not being truthful with investigators.
Judge Barrett restated the law that a plaintiff does not need to show direct proof to make a discrimination claim. It is rare to have an overt admission that the employer intended to discriminate against the employee.
Judge Barrett found that plaintiff’s circumstantial evidence was enough to bring a discrimination claim. For example, plaintiff’s termination was quick and in violation of union commitments, the investigation had numerous factual errors, and there was evidence that other Hispanic employees were mistreated and disciplined more harshly than other groups.
It remains to be seen how Justice Barrett will address future employment cases and whether her conservative underpinnings will shape her decisions. The new Supreme Court term has just started so we will all be watching.
If you believe you have been the victim of discrimination or harassment at your job, McOmber McOmber & Luber has experienced employment attorneys ready to fight for you. Please call our office in Red Bank, New Jersey at 732-842-6500, our Newark, New Jersey office at 973-878-9040, or our Marlton, New Jersey office at 856-985-9800.