On Saturday, September 26, 2020, President Donald Trump announced Amy Coney Barrett of the Seventh Circuit Court of Appeals as his nominee to replace the late Justice Ruth Bader Ginsburg. A conservative justice serving for the Court of Appeals covering Illinois, Indiana and Wisconsin since 2017, Judge Barrett aligns herself as more of a textualist judge, or one who reads and interprets the law as is written. Many associate this style of judgeship with the late conservative Supreme Court Justice Antonin Scalia. Putting politics and interpretations aside, what does this appointment mean for employers? Well, it sounds promising.

During her three years on the Seventh Circuit, Barrett’s employment law decisions have resulted in significant victories for employers. Some of her key employment decisions are outlined below.

The ADEA: Dale Kleber v. CareFusion Corporation:

In Kleber, a 58-year-old attorney applied for a senior in house position, requiring three to seven years of relevant legal experience. Kleber, who had more than seven years of experience, was passed over for a 29-year-old applicant who met, but did not exceed, the experience requirement. In limiting the Age Discrimination in Employment Act (“ADEA”), Barrett sided with the majority, holding that while the ADEA does protect employees from disparate impact age discrimination, such protections do not extend to job applicants.

Federal Arbitration Act and the “Gig Economy”: Carmen Wallace v. Grubhub Holdings, Inc. and Grubhub Inc.:

In Wallace, and writing for the Court, Justice Barrett upheld the mandatory arbitration clauses signed by plaintiffs (i.e., Grubhub drivers). The court found that the drivers were not exempt from the Federal Arbitration Act (“FAA”) under the exemption for “any other class of workers engaged in foreign or interstate commerce” because, simply, Grubhub drivers often do not personally transport goods across state lines. Therefore, the Grubhub drivers were required to resolve their dispute in the agreed upon arbitration forum.

ADA: James Graham, Jr. v. Arctic Zone, LLC:

In Graham, the employee sued under the Americans with Disabilities Act (“ADA”) alleging that his employer, an ice rink, failed to accommodate his disability and discharged him because of his disability. In regard to the failure to accommodate claim, Judge Barrett reasoned that the employee failed to uphold his end of the interactive process because he did not inform his employer that his new work assignment to sharpen skates actually required him to stand for long periods of time, which violated his medical restriction to work in a seated position. Further, the Court reasoned that the employers’ reasons for Graham’s termination, including a Zamboni accident and behavioral issues, were not pretext for disability discrimination.

Title VII: Agüero v. Bd. of Trustees:

In Agüero, the employee alleged that she was discriminated against on the basis of her race and national origin in violation of Title VII when the University of Illinois chose not to renew her employment contract due to unsatisfactory performance reviews. The court ruled that the employee could not establish that she was performing to her employer’s expectations. Specifically, although the employee presented positive performance reviews from previous years, the court reasoned that “any positive feedback that Agüero received at a different time and in a different position is irrelevant.”

Barrett’s confirmation hearings are set to begin October 12. Barrett’s confirmation over the next several weeks or months will surely carry political firepower and debate. However, if confirmed, employers may likely have obtained a new ally on the Supreme Court.

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Photo of Megan E. Bennett Megan E. Bennett

Megan focuses her practice on the representation of management in all aspects of labor and employment law. She assists in providing day-to-day counseling to employers by researching and recommending best practices for companies on human resources issues such as terminations, compliance with employment…

Megan focuses her practice on the representation of management in all aspects of labor and employment law. She assists in providing day-to-day counseling to employers by researching and recommending best practices for companies on human resources issues such as terminations, compliance with employment laws, workplace investigations, and the preparation of policies and employment agreements. Megan aids in the defense of employers in discrimination, harassment, retaliation, and various other employment-related claims before judicial bodies and administrative agencies. Megan assists clients across several industries in preparing annual affirmative action plans and defending against OFCCP audits.

During law school, Megan had hands-on experience, including serving as a Judicial Extern to the Honorable Judge Christopher Boyko of the U.S. District Court for the Northern District of Ohio, a Law Clerk for the Cuyahoga County Prosecutor’s Office, and a Legal Intern for the U.S. Department of Education, Office for Civil Rights. In addition, Megan was a Frantz Ward Summer Associate.

Prior to law school, Megan taught Kindergarten and Pre-Kindergarten in New York City through Teach for America. Megan holds a Master’s degree in Early Childhood Education from Lehman College of the City University of New York. Megan also has a Bachelor’s degree in Political Science and Communications from the University of Dayton.

Photo of Jonathan Scandling Jonathan Scandling

Jon focuses his practice on the representation of management in all aspects of labor and employment law. He provides counseling and training to clients for best practices on a wide range of human resource issues such as terminations, compliance with employment laws, workplace…

Jon focuses his practice on the representation of management in all aspects of labor and employment law. He provides counseling and training to clients for best practices on a wide range of human resource issues such as terminations, compliance with employment laws, workplace investigations, and the preparation of policies and employment agreements. Jon also assists with the implementation of arbitration agreements and policies for employers.

Jon has extensive experience in public sector labor & employment law, with much of his practice revolving around traditional labor matters. Prior to Frantz Ward, Jon worked for Cuyahoga County as an Assistant Law Director in the Labor & Employment Group. While at the County, Jon’s practice involved traditional labor matters where he represented management in a complex labor/management relationship comprised of over 37 separate bargaining units, employment litigation and general employment counseling. He appeared in both state and federal court, and represented management in State Employment Relations Board hearings, contract negotiations, grievance arbitration and various other forums. Jon also has extensive experience dealing directly with various public sector unions, ranging from deputy and correction officers to office workers and clerical employees. He also was a law clerk for the State Employment Relations Board in Columbus.