Olson: No, Amy Coney Barrett Is not ‘anti‐worker’
By Walter Olson |
According to Sens. Sherrod Brown, D‐ Ohio, and Sen. Elizabeth Warren, D‐ Mass., Supreme Court nominee Amy Coney Barrett is “anti‐ worker.” From Jacobin and Salon to In These Times, voices on the left have joined the chorus to denounce the Notre Dame‐trained jurist as overly inclined to side with bosses and the capitalist class in labor disputes.
As a libertarian, it wouldn’t bother me if Barrett were an ardent advocate of freedom of contract and property rights. But I’m sorry to report that a look at her actual rulings on workplace and employment cases shows they’re just not very big news one way or the other. Barrett has hewn carefully to the precedent and guidance handed down by the U.S. Supreme Court, just as you’d expect from an accomplished appeals court judge, and she has also stayed well within the mainstream of her own Chicago‐based 7th Circuit Court of Appeals.
Barrett has written few dissents in general, and so far as I have been able to find, none in this area. Nor have her rulings in workplace cases, any more than her rulings in general, tended to draw dissents from her colleagues. In Grussgott v. Milwaukee Jewish Day School, Inc., a unanimous panel on which she sat found that a job teaching Hebrew and Jewish studies at a private religious school was covered by the “ministerial exception” to anti‐ discrimination law, a finding consistent with the approach of both liberal and conservative justices on the Supreme Court.
In a case this year, Purtue v. Wisconsin Department of Corrections, Barrett affirmed that a prison employee had been properly dismissed for having falsely accused an inmate of throwing an empty food box at her. Prison officials noted that the consequences of the assault allegation could have been extremely severe for the prisoner, perhaps even leading to his assignment to a maximum‐security facility. Rejecting the officer’s claim of sex discrimination, Barrett ruled that her misconduct was both the stated reason for her dismissal and a sufficient reason under the circumstances. (The case, by the way, is a reminder that the demand for “pro‐worker” judicial rulings is often at odds with genuinely progressive social goals, which include that of not letting inmates be falsely accused in situations like this.)
In discrimination claims, as commenters have pointed out, Barrett tends to take a fact‐ intensive approach, and has repeatedly upheld the claims of bias plaintiffs. That includes the cases of a Chicago parks employee who won an award based on discrimination against her Hispanic background, a male butcher who recovered damages over harassment by his male grocery store co‐workers and supervisor, and a Costco employee who sued the retailer for not doing more to protect her from a customer who harassed her for more than a year. On the other hand, she ruled in favor of the Illinois highway department against a worker fired after repeated unsatisfactory evaluations for unsafe conduct, confrontational attitudes, and inability to keep up with training.
It’s true that Barrett took part as one vote among many at the full appeals court in two cases that touched on interesting and unresolved issues of employment law. In Kleber v. CareFusion, she joined an 8–4 ruling holding that the language of the Age Discrimination in Employment Act does not allow claims by job applicants over “disparate impact” (that is, over formally neutral policies or practices that adversely affect one group disproportionately, as opposed to intentional discrimination). The court relied on textualist reasoning, but it might also be noted that applying disparate impact rules regarding age to the hiring process could lead to some ripely absurd results. For example, it could cast doubt on the legality of employer recruitment at college job fairs, since that tends to screen out 70‐ year‐ olds. (Either Congress or the Supreme Court could take up and resolve this issue in future.)
In the other instance, Barrett joined a 5–3 majority that declined to rehear a case (EEOC v. AutoZone) based in part on an allegation that a retailer had transferred a non‐Hispanic worker, who was black, away from a store with a heavily Hispanic clientele to a different store in the chain. The main reason the court declined rehearing was probably the weakness of the case in general; the judge had found that the employee had not been injured by the transfer, and in fact had testified that he “didn’t mind” it; there was testimony that he was having trouble communicating with the store’s customers; the complainant, his store manager, and the company’s decision‐maker were all black; and so forth.
On top of all that, courts have not ruled that it is illegal for employers to take into account some of the factors here so long as the effect of doing so is not to put other employees at an overall disadvantage. Were courts to ban job assignments based on recognition of so‐called cultural competence, unwelcome and unintended consequences might once again follow; in particular, the result might be to undercut one reason companies are urged to recruit culturally diverse staff in the first place.
The 7th Circuit in both cases broke along roughly though not perfectly ideological lines. So we might guess, based on these two data points, that Barrett’s views fall somewhere amid the range of typical views held by Republican‐appointed judges. And that’s really all we can guess.
Barrett’s ruling in Wallace v. GrubHub, regularly cited by her critics, turns out to be a routine exercise in applying precedent. Under an exception to the Federal Arbitration Act, workers can bypass arbitration and sue their employers if they are “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” That last clause is ambiguous: If it incorporates the notoriously loose reading of “interstate commerce” found in Commerce Clause jurisprudence, then it exempts nearly all jobs.
But a majority of the Supreme Court led by Justice Anthony Kennedy addressed this question in a 2001 case, Circuit City, and decided to read the phrase far more narrowly in light of the listed mentions of seamen and railroad workers to cover only transportation workers, and among them only those engaged in interstate and foreign as opposed to local transport. Although there are a few hard cases at the dividing line between in‐state and interstate, GrubHub isn’t one of them; it’s a local restaurant delivery service. That Barrett followed the path laid down by the high court in Circuit City tells us nothing about whether she is a conservative judge or some other kind.
But that’s how it tends to go when pressure‐ group ideologues compile tidy checklists of cases meant to provide ammunition against judicial nominees. Much, even most of the day‐to‐day work of judges consists of relatively routine and technical issues in which emotion plays little role. The role of groups like Alliance for Justice is to jam this work into a “which side are you on” framework based on the notion that the only thing of interest in a case is which side won.
It’s now a routine part of the mudslinging of the modern confirmation process. We, and senators, are free to ignore it and move on.
Walter Olson is a senior fellow at the Cato Institute.