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.
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.