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Employment Law Implications of a Justice Barrett

Posted by Javier Perez | Oct 27, 2020

Overnight, President Trump's appointee Judge Amy Coney Barrett, was sworn in to the U.S. Supreme Court.  The confirmation process for Justice Barrett has grabbed headlines due to the highly politicized nature of the process itself, especially given the unprecedented rush to confirm her appointment in the middle of early voting and prior to Election Day.  Justice Barrett was nominated by President Trump to the Seventh Circuit Court of Appeals in 2017 and then nominated again by President Trump to the U.S. Supreme Court in 2020 after the death of Justice Ruth Bader Ginsburg.  While many have opposed the appointment made in the middle of early voting, in the world of  employment law, Judge Barrett's record has provoked its own response.  Judge Barrett served on the 7th Circuit Court of Appeals for three years and in that short time has taken strong stances in dismissing the claims brought by employees.  The National Employment Lawyers Association, for one, has voiced strong opposition.

Why It Matters

Overall, where there has been room for interpretation, Justice Barrett's opinions and votes have come down against employees.  To be clear, many judges across the country have ruled similarly or even beyond her record.  But consider, for example, had Judge Barrett's approach been employed in this year's Bostock v. Clayton County case which recognized anti-discrimination protection on the basis of sexual orientation – it would not appear her interpretation would allow that historic outcome. 

As a justice on the U.S. Supreme Court, Justice Barrett's votes and opinions will likely carry forward for generations.  And while, historically, the Supreme Court has had to lead on issues of human and civil rights where the legislature fell short; a strict interpretation would not have allowed for this progress.  It is therefore critical that we vote, stay engaged, and stay vigilant in our advocacy for our communities and the rights of the marginalized.

Justice Barrett's Record on Employment Cases 

In her short time as a judge, then-Judge Barrett made waves in employment law circles with several decisions and votes dismissing employee's claims against their employers – including one brought by the EEOC itself.  It is important to note that these decisions involve the dismissal of employment cases before they get to trial.  This means that Judge Barrett, and the colleagues that joined her, did not permit the employees alleging various forms of employment discrimination to have their day in court and present their case to a jury.  As for so-called “judicial activism,” one could argue such dismissals constitute their own form of activism that infringes on our 7th-amendment right to a trial by jury. 


In Smith v. Illinois Department of Transportation (2019), Judge Barrett authored the opinion for a three-judge panel that upheld the dismissal of an employment discrimination lawsuit brought by a black employee named Terry Smith.  Mr. Smith claimed that his white supervisor called him the N-word.  In dismissing Mr. Smith's claim that the use of the word created a hostile work environment, Judge Barrett wrote that it was not enough for Mr. Smith to “simply [prove] the word was uttered,” but that he must also “demonstrate” that the use of the word by his white supervisor “altered the conditions of his employment and created a hostile or abusive working environment.”  Judge Barrett reasoned that Mr. Smith, a black man, failed to establish that the “use of the n-word changed his subjective experience of the workplace.”  You can read Judge Barrett's opinion here:

To be clear, Judge Barrett accurately states the legal standard for a hostile work environment – there is both a subjective and objective requirement.  However, other judges – including Judge Barrett's conservative colleague Justice Brett Kavanaugh – have correctly concluded that the mere use of a racial epithet like the n-word “suffices by itself to establish a racially hostile work environment.  That epithet has been labeled, variously, a term that sums up . . . all the bitter years of insult and struggle in America . . .”  Judge Barrett's opinion in Smith spends quite a bit of time lambasting the employee for various alleged performance deficiencies and seems to conclude that with all those problems, how could Smith show that being called a “stupid N” altered the conditions of his workplace?  While Judge Barrett extolls a religious adherence to the letter of the law, this is an example of the discretion judges exercise on a regular basis.  That discretion in specific cases creates caselaw which, in turn, shapes outcomes for numerous cases that follow.


In EEOC v. AutoZone, Inc. (2017), Judge Barrett voted against the U.S. Equal Employment Opportunity's Commission's request to have the court review a case that upheld AutoZone's practice of assigning employees in Chicago to different neighborhoods based on their race.  It was alleged that AutoZone went so far as to transfer a black employee to a store in a black neighborhood so as to “ensure [ ] racial homogeneity.”  The judges dissenting from the decision to deny the rehearing described its reasoning as ruling that “separate-but-equal” was permissible, which in turn provides tacit rejection of the idea that “segregation by its very nature has an adverse effect on the people subjected to it.”  You can read the opinion here:


In Kleber v. Carefusion Corporation (2019), Judge Barrett voted that the disparate impact provision of the Age Discrimination in Employment Act, which prohibits employment actions that have a disparate impact on people over the age of 40, did not apply to job applicants.  As pointed out in the two dissents, the language in the statute was unclear at best and the panel of judges – joined by Barrett – opted to interpret the language to exclude job applicants from even being able to bring that type of claim.  Again, the discretion judges exercise shapes outcomes for the cases that follow.  You can read the decision here:

About the Author

Javier Perez

Javier Perez is a Dallas-based bilingual civil litigation attorney, Board Certified Labor & Employment Law.

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