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Barrett’s Rulings Offer Insight on Gig Work, Job Discrimination

Oct. 15, 2020, 7:43 PM

Judge Amy Coney Barrett’s record in labor and employment cases could signal how a solid conservative bloc on the U.S. Supreme Court may approach workplace issues that include gig economy drivers and arbitration, as well as race and age discrimination.

During her tenure on the U.S. Court of Appeals for the Seventh Circuit, the high court nominee authored and participated in decisions that indicate she’d likely bolster an existing pro-business majority held by the court, attorneys and academics say. However, they said Barrett also relies on statutory text and precedent to rule in favor of both employers and workers.

“If you examine her record she seems to take employer interests under consideration, even though I don’t think employers can count on her as an automatic vote,” said Richard Meneghello, an attorney with management-side firm Fisher Phillips in Portland, Ore. “She’s not an ideologue. There are many appellate court justices that are 100% in terms of rulings and she isn’t that. Her decisions seem reasonable and she doesn’t seem to have a vitriolic streak.”

A report from liberal government watchdog Accountable.US analyzed her opinions and found that when discrimination issues were before her, she sided with workers only 8% of the time. But the Committee for Justice, a right-leaning legal policy group, argued in a statement that she rendered rulings in favor of both employees and employers based on a “strict factual examination” of each case.

The Senate Judiciary Committee is scheduled to vote on Barrett’s nomination Oct. 22.

Gig Economy Arbitration

One issue that could eventually reach the Supreme Court focuses on whether gig economy drivers can bring minimum wage and overtime lawsuits in court or whether they must pursue those claims in private arbitration. The high court in the past decade has bolstered its precedent favoring arbitration.

In August, Barrett wrote the majority opinion in a Grubhub, Inc. case that said its drivers don’t engage in interstate commerce—meaning they don’t qualify for a federal exemption that would keep their wage-and-hour claims out of arbitration.

That same issue is pending in the First and Ninth circuits in cases involving Uber Technologies Inc. and Lyft Inc.. Barrett distinguished the GrubHub case from others involving Amazon.com Inc. “last mile” delivery drivers who were found by other appeals courts to operate within interstate commerce.

Attorney Shannon Liss-Riordan of Lichten & Liss-Riordan in Boston, who represented the workers in the Amazon and GrubHub cases, said Barrett questioned her thoughtfully and seemed to want to get to the heart of the issues during the Seventh Circuit oral argument. But Barrett’s opinion was written in a dismissive way, she said.

“I’m concerned what the outcome in that case may say about her views and her commitment to ensuring that wage and other employment protections are enforced,” Liss-Riordan said.

In a separate decision about interstate commerce in August, Barrett wrote the panel opinion that rejected a Fair Labor Standards Act suit where a group of truck drivers sought overtime pay from Contract Transport Services.

Barrett found that the drivers were part of a continuous interstate journey, which meant they fell under a Motor Carrier Act exemption and aren’t entitled to overtime pay under the FLSA.

Barrett was also on a Seventh Circuit panel that handled a novel issue involving Facebook, Inc. and set requirements for when employees with arbitration agreements should receive notice of their right to join a proposed overtime class action.

The ruling was distinct from a Fifth Circuit ruling in which JPMorgan Chase faced a claim that it shorted a potential group of 42,000 workers on wages.

“If she carries these views on to the court, I wouldn’t consider them wildly out of line with what opinions conservatives already held,” Rae Vann, a shareholder with Carlton Fields in Washington, said of her arbitration rulings. Vann has authored a number of friend-of-the-court briefs in labor and employment cases before the Supreme Court.

Age Discrimination Scope

Barrett joined the full Seventh Circuit majority in a case that rejected an older attorney job applicant’s “disparate impact,” or unintentional bias, claims under the federal Age Discrimination in Employment Act.

That issue could eventually see a circuit split, as well.

Asked about this ruling on Oct. 14 during her confirmation hearings, Barrett said the question presented was whether the federal prohibition against age discrimination covered applicants when the statute only specifies employees.

She said Congress would need to amend the ADEA to include applicants in order to ensure those same protections that other civil rights statutes provide, such as Title VII of the 1964 Civil Rights Act.

The decision by the Seventh Circuit was a “mechanical and untethered” view of textualism, said Samuel Estreicher, a New York University School of Law professor and director of its Center for Labor and Employment Law. He said he hopes Barrett as a justice will look at the overall purpose of statutes, as well. He predicted the job applicant issue may rise to the Supreme Court once there’s a clear conflict in the appeals courts.

“Every textualist should be engaged in the ongoing analysis, asking, does this reading make sense in light of the entire statute?” Estreicher said.

Race Bias Rulings Scrutinized

As the Senate Judiciary Committee grilled Barrett on her record, several reports surfaced criticizing her rulings involving race discrimination at work.

In August 2019, Barrett wrote an opinion finding that the Illinois Department of Transportation didn’t violate Title VII when it fired Terry Smith, a Black worker, at the end of his probation, even though he claimed that a supervisor called him a “stupid ass ni[].”

The n-word is an egregious epithet that can support a hostile environment claim, but he failed to show it altered his working conditions, Barrett wrote. His tenure, which was marked by performance problems, was already “rocky” when the remark was made, she said.

Sen. Cory Booker (D-N.J.) asked Barrett about this case during her confirmation hearings; she said that the worker failed to meet the bar for a hostile work environment claim.

“Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment,” she said.

Barrett has also sided with workers in harassment and national origin discrimination cases.

One included a case brought by the Equal Employment Opportunity Commission on behalf of a female Costco Wholesale Corp. employee who was stalked by a male customer and said she was traumatized by it. Barrett said the harassment was enough to create a hostile work environment in that case.

Barrett has shown a mix of pro-employer and pro-worker opinions in the employment space, but all of them indicated she largely aligned with her stated texualist philosophy, similar to Justice Antonin Scalia, said Vann of Carlton Fields.

“I expect she will be similar to him. He wasn’t 100% with the employer in all employment cases,” Vann said. “Nothing struck me in her record as outlandish. She didn’t upend precedent and seemed to cite text and precedent.”

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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